Terms & Conditions of Trade 2021
All standard sales of Goods and services provided by Gas Masters Pty Ltd (ACN: 619 558 477) are subject to the terms & conditions of trade. Customer agrees to be bound by and accepts these Terms & Conditions outlined below by engaging Gas Masters Pty Ltd to perform any types of service(s) or provide product(s) unless otherwise agreed in a separate written agreement.
Explanation of (Terms) in the following Terms & Conditions of Sale:
- “ComfyHome” means Gas Masters Pty Ltd trading as ComfyHome Heating Cooling, it’s successors and assigns any person acting on behalf of and with the authority of Gas Masters Pty Ltd.
- Customer means the customer who agrees to proceed with any type of service(s) or product(s) provided by ComfyHome Heating & Cooling.
- “Goods” means all Goods or Services supplied by ComfyHome 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 “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- Payment Terms:
The terms of payment to ComfyHome are as follows:
- Customers shall pay ComfyHome according to the terms contained in the quotation/ proposal.
- Payment of any outstanding amount is due immediately upon completion of any work(s) performed by ComfyHome.
- ComfyHome reserves the right to charge interest on overdue amounts at the rate of 3% per annum prescribed under the Penalty Interest Rates Act 1983 (VIC) plus an administrative fee of $20 per month.
- In the event the Customer defaults in payment of any invoice when due, the Customer indemnifies the ComfyHome from and against all costs and disbursements incurred by ComfyHome in pursuing the debt, including legal costs, on a solicitor and own client basis, and ComfyHome Collection Agency costs .
- If at any time the Customer is in breach of any obligation (including those relating to payment), ComfyHome shall be at liberty to suspend or terminate the supply of Goods and/or Services to the Customer at any time without any notice.
- ComfyHome shall be entitled to cancel all or any part of any order of the Customer, which remains unperformed and all amounts owing to ComfyHome shall, whether or not due for payment, become immediately payable in the event that:
- Any monies payable to ComfyHome becomes overdue, or ComfyHome observes that the Customer would not be able to meet its payment obligations as they become due;
- The Customer 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;
- A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- Only written quotations issued by authorized employees are accepted;
- The quotation shall be valid only for thirty (30) days from the date of its issuance;
- The quotation may be amended at any time before receipt of order;
- ComfyHome shall not be bound by any quote if it forms the view that the subject matter of the quotation is to form part of a multiple or series of transactions with the Customer and circumstances of for any of the transaction have materially changed;
- The customer agrees to pay charges to ComfyHome for holding any Goods referred to in any quote pending placement of the order;
- ComfyHome reserves all its rights to cancel or withdraw any order or quote at anytime before the fulfilment of order;
- Advance or deposit payment made by any Customer shall not to be deemed to be final acceptance by ComfyHome;
- The price mentioned in the quotation is based on the specification, drawings and/or requests by the Customer, and;
- In the event of any change in the specification and/or on request of the Customer, ComfyHome reserves all its rights to modify the quotation, that the Customer shall have no objection for the same and that the customer shall either accept the modified quotation without any demur or may cancel its order;
- In the event of cancellation of order placed by the customer ComfyHome reserves its rights to deduct the handling/administrative and all other cost incurred by it and will refund the balance amount, if any;
- All quoted prices are inclusive of GST unless otherwise stated.
- Retention of Title:
- All Goods supplied and installed by ComfyHome remains the property of ComfyHome until full payment has been received and that if payment is made in any mode other than cash it shall not be deemed to be paid until that form of payment has been realised;
- It is agreed between ComfyHome and the Customer that ownership of materials & Goods shall not pass to the customer until the Customer has met all other obligations due by the Customer to ComfyHome in respect of all contracts between them;
- In the event of a default by the Customer, then without prejudice to any other rights which ComfyHome may have at law or under this contract;
- ComfyHome can exercise its right to enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods in whatsoever manner deemed necessary;
- ComfyHome in its absolute discretion can also seize all Goods matching the description of the Goods supplied by it to the Customer and hold the same for a reasonable period so that the respective claims between ComfyHome and the Customer may be ascertained;
- After realisation of payment, ComfyHome shall immediately return the Customer’s Goods so seized and ComfyHome is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s premises however arising from the seizure of the Goods.
- In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for ComfyHome in dollar at prevailing rate;
- ComfyHome shall not be responsible for delivery of Goods if required, on request of the customer ComfyHome may explore to facilitate the same solely at the Customer’s costs;
- The Customer will be deemed to have accepted delivery and liability for the Goods immediately when ComfyHome notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s premises or site whether attended or not;
- A certificate purporting to be signed by an employee of ComfyHome confirming delivery will be conclusive evidence of delivery as will any signed delivery docket;
- ComfyHome will not be liable for delay, failure or inability to deliver any Goods;
- Once the Customer is notified that Goods are ready for collection, the Customer agrees to pay all costs of holding or handling Goods;
- If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs;
- Delivery and installation times agreed to or notified by ComfyHome are estimates only and ComfyHome may vary such delivery or installation times without notice. The Customer is not entitled to terminate its order or agreement with ComfyHome as a result of a delivery or installation time so varied.
- Only Goods in new and saleable condition with restocking fees of not less than 15% of invoice value are eligible for return;
- Customer specific Goods shall not be returnable;
- Complaint of any allegedly defective Goods attributable to ComfyHome, to the satisfaction of ComfyHome, will be accepted and will be replaced free of charge; labour, transport or material costs shall be charged extra.
- Limitation of Liability:
ComfyHome assumes no liability whatsoever with respect to;
- The acts or omissions of any auxiliary personnel, or;
- Damage caused to or from any Goods provided by ComfyHome to the Customer for the purpose of the performance of its Services except as expressly provided and except to the extent that liability may not be lawfully excluded under any statute;
- ComfyHome shall not be liable in contract or otherwise for any direct, indirect, incidental, special, exemplary or consequential loss or damage sustained by Customer in relation to performance of its obligations, whether or not Customer has been advised of the possibility of such damage. Each party’s maximum liability to the other party in respect of claims shall be limited to all charges paid by a party to the other party to the event of liability.
- Product and Service:
- ComfyHome disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process;
- The Customer agrees to check all Goods prior to placing order, use alteration or any application thereof whether in relation to suitability for their particular purpose, process or otherwise;
- The Customer shall agree to check and test all Goods;
- The Customer agrees to accept Goods ordered;
- ComfyHome disclaims any responsibility or liability relating to any Goods:
- processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and/or;
- utilised, stored, handled or used incorrectly or inappropriately.
- Workmanship Guarantee:
- For claiming warranty a proof of purchase shall be provided by the Customer;
- ComfyHome’s warranty shall not include filter-cleaning, rectification of faults arising from power failure, misuse of equipment, lack of routine maintenance, or operator error. Services under warranty shall be available on working days only during office hours. For making any claim under warranty Customer needs to write to firstname.lastname@example.org or call 1300 266 394;
- Warranty on new air conditioning units and new parts are subject to the manufacturer’s warranty. However, where permissible by law, the customer must pay for all work undertaken in carrying out a repair if the manufacturer’s assessment determines the claim does not fall within the manufacturer’s warranty terms;
- Three types of warranty can be claimed:
- Manufacturer’s warranty: whereby, in the occasion Goods provided by ComfyHome suffer defect or fault, ComfyHome will act as an intermediary between the Customer and the manufacturer for the purposes of creating a warranty claim to the limit of the manufacturer’s warranty, with the understanding that the manufacturer may charge for time and materials if the issue was not due to a Manufacturer fault;
- Installation warranty: a guarantee of workmanship and associated ductwork and materials on new installations for a period of 6 (six) years whereby ComfyHome will repair the product in the event of any defect, and;
- Service warranty: a guarantee of parts supplied and installed by ComfyHome in the course of a service or repair for a period of 3 (three) months, not covering any other part or piece of equipment not replaced by ComfyHome. All costs of freight and travelling expenses associated with making a claim under this warranty are to be paid by the Customer;
- The Customer is entitled to a replacement or refund for a “major failure” and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a “major failure”, guarantee provided for Goods shall be in accordance with Australian Consumer Law.
- Protection of Works and Safety of Personnel:
The Customer agrees that:
- They shall be responsible to keep the site at which installation is required fully secure, safe (for the provision of the services by ComfyHome and its personnel) and free from contamination;
- ComfyHome shall not be responsible for any damage to the site not attributable to the negligence of the personnel of ComfyHome.
- Site Contamination:
The Customer agrees that if there is any site contamination caused during installation by personnel of ComfyHome, the personnel will endeavour to clear the site, however ComfyHome shall not be liable for any refuse or materials left behind.
- Manufacturer’s Liability:
Any defect in the Goods shall be governed and covered as per the manufacturer’s warranty per clause 9.c). Customer agrees that ComfyHome is not a manufacturer but is just an installation company and ComfyHome shall not be liable and responsible for any guarantee or warranty for the Goods sold.
Goods are sold subject to any manufacturer’s trading terms and conditions and are covered (if at all) by any manufacturer’s warranty applicable thereto. Irrespective of whether the Goods are fully functional or in need of servicing under the manufacturer’s warranty, the Customer agrees not to withhold any payment for any works carried out by the ComfyHome.
- Performance or Condition of Existing Equipment:
Customer agrees that ComfyHome Warranty service will only cover the newly installed equipment, controls, or materials, as well as their workmanship. In the event that an existing piece of equipment prevents the proper start up or operation of the new equipment or system, Customer assumes all responsibility for any additional service charges that may be incurred.
ComfyHome is not responsible for the performance, functionality, or compatibility of existing equipment, ductwork, duct board, controls, or other equipment/materials that is not replaced during a job installation and that Customer agrees to keep in place. In addition to this, ComfyHome is not responsible for any problems with heating or cooling due to the existing line set, which may require repair and replacement for an additional cost to the Customer. Should the Customer reject ComfyHome’s recommendation to replace an existing line set, ComfyHome’s limited warranty is voided.
- Force Majeure:
- The agreed periods or dates of delivery of the Goods or Services shall be automatically extended for such period of time as ComfyHome is prevented from or delayed in complying with its respective obligations by causes outside of ComfyHome’s control, including, without limitation, any act of God, accident, fire, earthquake, flood, explosion, strike, act of a public enemy, war, rebellion, insurrection, sabotage, transportation delay, shortage of raw material, energy or machinery, executive, judicial or administrative act, regulation order or decree of any government (“Force Majeure”). Any such event of Force Majeure shall also automatically suspend, for its respective duration, the legal consequences of any default situation for which ComfyHome is to be held responsible. Upon occurrence of any such event of Force Majeure, ComfyHome may cancel unfulfilled orders in full or in part by giving written notice thereof. Should ComfyHome cancel such order in full or in part in accordance with the above, it shall forthwith refund the Customer any such amount of advance payments as is attributable to the cancelled part of the order and the Customer shall not be entitled to any other compensation and/or remedy with respect to the so cancelled order (or part thereof).
- The party affected by any of the occurrences referred to above shall give notice in writing to the other party within three days after the commencement of the occurrence.
- In the event that any of the occurrences referred to above cause a delay of more than 3 months either party may terminate.
- The Customer acknowledges that the Terms and Conditions constitute security agreements and that ComfyHome may register a financing statement in respect of the security interests provided herein.
- Without prejudice to any other provision contained herein, the Customer and the Guarantor grants by way of charge in favour of ComfyHome all of its interest in the Customer’s and Guarantor’s present and after acquired real property to secure the performance of the Customer’s obligations under the Contract, including payment of the Amount Payable.
- The Customer and/or Guarantor acknowledges that ComfyHome have:
- A caveatable interest in any real property of the Guarantor and hereby provides its consent for ComfyHome to lodge a caveat over that property. Upon demand by ComfyHome, the Guarantor agrees to immediately execute a mortgage on terms satisfactory to ComfyHome to more particularly describe the security interest conferred by this clause;
- A registrable security interest (as defined under the Personal Property Securities Act 2009 (Cth)) in all present and after-acquired personal property of the Guarantor and hereby consents for ComfyHome to register a security interest over that property.
- Upon demand, the Customer and/or Guarantor agrees to immediately execute a mortgage on terms satisfactory to ComfyHome to more particularly describe the security interest conferred by Clause 2. Should the Customer and/or Guarantor fail within a reasonable time of such demand to execute that mortgage, then the Customer and/or Guarantor irrevocably appoints ComfyHome as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Customer, to the extent of the Amount Payable.
Any and all discretions to be made in respect of these Terms and Conditions must be made by such parties acting reasonably in view of the prevailing circumstances at the time.
- Dispute Resolution:
Any disputes between ComfyHome and Customer shall be subject of mediation administered by the Australian Commercial Disputes Centre Limited (ACDC). Any mediation or arbitration meetings and proceedings will be held in Melbourne, Victoria.
ComfyHome may terminate the Agreement immediately if any of the following events occur:
- The Customer commits a material breach of any of these terms or conditions and fails to cure such breach within thirty (30) days of written notice specifying the breach;
- The direct or indirect ownership or control of the Customer changes, which change shall be communicated by the Customer to the ComfyHome immediately;
- The Customer is put into liquidation or has ceased to conduct its business;
- The Customer requests or obtains (provisional) suspension of payment;
- The Customer loses command over its assets or part thereof due to seizure, by being placed under trusteeship or receivership, or in any other similar scenario;
- The Customer makes an assignment for the benefit of creditors.
This Agreement constitutes the entire agreement of the Parties on the subject thereof and supersedes all prior understandings on such subject. This Agreement may not be modified other than by a written instrument executed by the Parties.