Terms and Conditions of Trade
- Definitions: The following terms and conditions contain references, and are defined for the purpose of an Agreement:- “Advanced” means Advanced Air Conditioning Pty Ltd (ACN 097 378 651); “Agreement” means any contract that Advanced enters into pursuant to which Advanced is to undertake work, supply goods or to supply and install goods for a Customer; “Business Day” means any day other than:-
- A Saturday or a Sunday;
- A public holiday, special holiday or bank holiday in the place at which work is to be performed or goods delivered;
- The days between:-
- 22 to 24 December;
- 27 to 31 December and
- 2 to 10 January
including each of days mentioned in subparagraphs (i) to (iii) above.
Work may be performed outside these hours/days, in which case, additional costs will be met by The Customer.
“Customer” means any person with whom Advanced enters into a contract pursuant to which Advanced is to undertake work for, supply Goods or to supply and install Goods to or for that person. A person includes a body corporate, trust, partnership, unincorporated body or other entity whether or not it comprises a separate legal entity; “Goods” means any goods that Advanced has to supply to a Customer pursuant to an Agreement, including air-conditioners, ducting, or anything reasonably necessary to enable air conditioning to be installed; “Latent Condition” means the physical conditions on the Site or its surroundings and includes any building, anything found in a building or an artificial thing that differs materially from:-
- Any plan, specification or other document provided by the Customer, its servants or agents or on its behalf; or
- Those that Advanced should reasonably have anticipated at the time it provided its quote or tender from the information supplied by the Customer;
“Site” means the property or building to which Advanced is to deliver goods or in or upon which it is perform works including the supply and installation of air-conditioning equipment; “Substantial Breach” includes:-
- A failure by the Customer to pay any money due or payable pursuant to an Agreement or to pay such money by the time required by an Agreement;
- A failure by the Customer to take out any insurance required by an Agreement;
- A failure by the Customer to provide access as required by an Agreement.
“Work” or “Works” means the work that Advanced is to undertake pursuant to an Agreement, including the supply of any Goods;
- Application: These terms apply to any contract entered into by a Customer with Advanced, including where Advanced commences Work in the absence of any specific acceptance of its quote or contract terms being agreed.
- Agreement Documents: An Agreement consists of:-
- Any documented variation to an Agreement;
- Any quote or tender provided by Advanced, including any terms relating to the Works to be carried out by Advanced and particularly any inclusions or exclusions contained therein;
- These Conditions of Contract;
- Any plans provided by a Customer;
- Any specifications provided by a Customer; and
Any other documents agreed by the Customer and Advanced.
- Ambiguity or discrepancy: If any ambiguity or discrepancy is discovered in or between the Agreement Documents then any such ambiguity or discrepancy is to resolved:-
- In accordance with the Agreement Documents in the order in which they appear in clause 3 herein, provided that figured dimensions are to prevail over scaled dimensions appearing in any Agreement Document; or
- If the ambiguity or discrepancy is not or cannot be resolved by the application of clause 4.1 herein, in accordance with Advanced’s interpretation as to how the ambiguity or discrepancy is to be resolved. Advanced is to provide its interpretation to the Customer within a reasonable time after the ambiguity or discrepancy is either noticed by Advanced or Advanced is notified of the ambiguity or discrepancy.
- Governing law: The law governing an Agreement and the Conditions of Contract and their interpretation is the law of the State of Queensland. The Parties agree to the non-exclusive jurisdiction of the Courts in the State of Queensland.
- Approvals of Statutory Authorities: If requested by The Customer, Advanced will lodge applications to local Statutory Authorities for approval to erect or install the goods. When The Customer instructs Advanced to carry out this installation prior to approvals by such authorities, Advanced accepts no liability for any costs arising as a result of such approvals being denied after completion of the works. All costs for modification or removal in such cases to be met by The Customer.
- Validity Period: The quotation remains valid for a period of thirty (30) calendar days from the date shown on the quote received, and is subject to adjustment thereafter, however Advanced reserves the right to withdraw this quotation at any time.
- Rise and Fall: The Customer acknowledges that the price payable for Advanced’s Goods or services is based upon the completion date that has been contemplated or agreed. If the Works are delayed for any reason whatsoever that is beyond Advanced’s control, and notwithstanding any other term of an Agreement, the Customer must pay any increase in Advanced’s cost of labour or the cost of obtaining Goods that has occurred during the period of delay, i.e. after the originally contemplated or agreed date for completion. Any such increase is deemed to be a debt due and payable eleven (11) business days after being invoiced by Advanced
- Design Responsibility: When the goods have been manufactured and installed in accordance with a design and/or specification provided by The Customer, Advanced accepts no responsibility and will not be liable for any loss, damage or costs arising for any design or specification faults in operation of The Goods.
- Variations: A variation to an Agreement may be made orally. However, if Advanced requests that a variation be put into writing, the Customer must put it in writing immediately and in any event within one (1) Business Day of the request being made. Advanced is not required to undertake any work relating to a variation if it has requested the variation be put into writing until it has been put into writing.
Insofar as a variation is put into writing, it must include:-
- A description of the variation, including any change to, increase or decrease in the Works to be performed by Advanced;
- The agreed price payable to Advanced for the variation, or, if applicable, the decrease in the price payable to it pursuant to the Agreement; and
- Any extension of time agreed to the date for completion of the Work.
If Advanced and the Customer do not agree either the price change applicable to a variation or any extension of time applicable to a variation, then:-
- Where the variation changes or increases the Work required by the Agreement, the price payable shall be a reasonable price for
the work required for the variation, including an amount for profit and overheads;
- Where the variation decreases the Work required by the Agreement, the amount by which the price payable pursuant to the Agreement is to be reduced shall be a reasonable price for the Work that does not have to be performed by Advanced, but there shall not be any reduction in the price payable for profit or overheads; and
- Where the variation involves a change or increase in the Work that Advanced must perform pursuant to the Agreement, it is entitled to a reasonable extension of time in which to carry out the revised Works or the extra Works required by the variation;
- If the variation involves a decrease in the Work that Advanced is required to perform pursuant to the Agreement, there shall be no change to the date upon which the said work is to be completed.
Advanced may, but is not required to, invoice the Customer for work relating to a variation in accordance with clause 21 herein.
The Customer has no power or entitlement to direct Advanced to vary the Agreement or the Work to be performed or goods to be supplied pursuant to an Agreement.
If any change to the Works required by an Agreement is required so as to enable the Works to comply with any requirement of a statutory or other body, including any building approval or development approval relating to the Works, then any such work shall be a deemed variation to the works required by the Agreement.
- Subcontracting: Advanced may subcontract all or any part of the Work.
- Ability to Supply: Every effort will be made to fulfil Advanced’s obligations under this agreement, but if Advanced’s ability to supply the necessary labour, materials and/or services, is affected directly or indirectly by war, any law, strikes, civil commotion, acts of God, fire or any other cause beyond Advanced’s control, Advanced reserves the right to terminate this contract without being liable for any breach. Advanced will be entitled to payment for any materials supplied and works already completed, calculated on the basis of the rates in the quotation.
- Latent Condition: If a Latent Condition becomes apparent before or during the time in which Advanced is carrying out Work then the following conditions apply:-
- The Customer must pay Advanced the reasonable cost for Advanced having to deal with the Latent Condition, including the cost of any additional work or additional resources that may be needed to deal with the Latent Condition;
- Advanced is entitled to an extension of time to any date set by the Agreement for the completion of its works for the time it takes for it to deal with the Latent Condition.
- Access to the Site: The Customer must give Advanced or any of its subcontractors full access to the Site sufficient to enable it to undertake the Work. Notwithstanding any other term of an Agreement, Advanced is entitled to an extension of time to complete any Works it is required to undertake if it is delayed because full access to the Site is not provided. To avoid doubt, full access to the Site includes sufficient possession of it to enable Advanced to undertake any Work required of it pursuant to an Agreement.
- Risk in goods: If Advanced notifies the Customer of the date on which Goods are to be delivered to the Site, the Goods are at the risk of the Customer upon their being loaded upon any vehicle for the purpose of delivery to the Customer or the Site. Otherwise risk in the Goods passes to the Customer upon their delivery to the site.
The Customer must ensure that it takes out appropriate insurance to cover the risk of damage to or destruction of any Goods to be supplied by Advanced from the time risk passes to the Customer. The Customer indemnifies Advanced against any loss or damage that it or Advanced may suffer, including consequential loss or damage, arising out of the loss of or damage to Goods being supplied by Advanced from the time that risk in the Goods has passed to the Customer.
The Customer must provide Advanced with a copy of any insurance policy or confirmation of insurance cover within two (2) Business Days of receiving a written request from Advanced.
- Insurance of works: In addition to any other obligation relating to insurance pursuant to these Conditions of Contract, the Customer must insure the Works to be carried out by Advanced for:-
- Any agreed amount; or
- An amount that is sufficient to cover the costs of rectifying any damage or replacing any aspect of the Works, including all the Works.
To avoid doubt, if any of the Works to be carried out by Advanced or any Goods it is to supply pursuant to an Agreement are lost, damaged or destroyed, the Customer’s sole entitlement is to the amount it may recover pursuant the insurance it is required to take out pursuant to this clause. The Customer indemnifies Advanced in relation to any further or other losses or damage that it may suffer arising out of any loss of, damage to or destruction of any Works carried out by Advanced, including any failure to take out the insurance required by this clause.
The insurance to be taken out by the Customer pursuant to this clause must:-
- Insure the Works against all liability, loss, damage, action, claim or proceeding whatsoever, including, without limitation, in respect of fire, explosion, earthquake, lightning, storm or tempest, flood and civil commotion.
- Extension of time: Advanced is entitled to an extension of time in which to complete the Work if the Work is delayed for any reason beyond its control, including:-
- Inclement weather;
- The effects of inclement weather;
- Any variation to the Works;
- An act of God, fire, explosion, earthquake or civil commotion;
- An industrial dispute;
- A dispute with the owner of any property or a neighbour;
- Anything done or not done by the Customer;
- A delay in obtaining any approval relating to the Work;
- The industry shutdown period, being a 3-week period commencing on or about 22 December in each year if undertaking the Works in that period was not required or contemplated by the Agreement;
- A delay in the supply of goods to be supplied by Advanced.
Advanced may claim more than one extension of time if a particular delay has more than one effect on the carrying out of the Works.
Advanced may claim an extension of time at any time up to and including the date on which it claims payment for having completed the Works or the date on which the Works are completed. This condition survives termination of the Agreement.
- Delay damages: If, after Advanced has commenced Work, its carrying out of the Work is delayed by anything caused or contributed to by the Customer, then the Customer must pay Advanced the higher of the amount of:-
- The reasonable costs incurred by Advanced because of the delay; or
- 125% of the price payable to Advanced pursuant to the Agreement for each week or part of a week of the delay.
- Defects Liability Period: Advanced must rectify any defects in the Works of which it receives notice from the Customer only for the period of six (6) months after it has completed the Works. The Customer must give Advanced full access to the Site during Advanced’s normal business hours to enable it to carry out any rectification work pursuant to this clause.
- Warranty: Advanced warrants its workmanship for a period of twelve (12) months from date of installation. Extent of warranty on raw materials is limited to the extent of warranties given to Advanced by the Suppliers of such goods / materials, but is often restricted to replacement costs of materials claimed to be faulty, and may not include labour to replace such materials. Clarification should be sought from Advanced on the specific content of the goods in question.
- Invoicing: Advanced may invoice the Customer when it has completed the Work. If the Works have commenced and are yet to be completed, Advanced may invoice the Customer progressively for the value of the work it has performed.
- Payment: The Customer must pay:-
- The price payable pursuant to an Agreement without any deductions whatsoever;
- Any money invoiced by Advanced or claimed in a progress claim no later than ten (10) Business Days after the date of Advanced’s invoice or progress claim.
To avoid doubt:-
- The Customer is not entitled to retain any retention monies, whether by way of security or otherwise; and
- Any amount invoiced by Advanced or contained in a progress claim becomes due and payable as per invoice terms or progress claim.
- Default Interest: If the Customer fails to pay Advanced any money that is due, payable or due and payable pursuant to an Agreement, then at Advanced’s discretion, the Customer must pay interest on the monies not paid at the rate provided for by s.58 of the Civil Proceedings Act 2011 plus two percent (2%) from the date on which the monies were payable.
- Suspension of works: If the Customer fails to pay any amount due or payable to Advanced, then in addition to any other rights Advanced may have, it may immediately suspend the Works by giving the Customer notice in writing.
- Debt Collection costs: The Customer must pay any costs incurred by Advanced in relation to or associated with the costs of recovering or attempting to recover any amount Advanced claims is due or payable to it pursuant to the Agreement. The costs payable by the Customer include legal costs on a full indemnity basis. To avoid doubt, the Customer’s liability for costs pursuant to this clause is not limited to costs on an indemnity basis as contained in the Uniform Civil Procedure Rules 1999 and the Customer must pay the actual amount paid by Advanced to a legal practitioner or owed by it to a legal practitioner in relation to the recovery or attempted recovery of money pursuant to this clause.
- Insolvency: If either Advanced or the Customer:
- Informs the other in writing or its creditors generally that it is insolvent; or
- Becomes or is bankrupt or seeks to take advantage of the laws relating to bankruptcy; or
- If a corporation, has a court order made for the winding up of the party or if a resolution is passed for its winding up;
the other party may immediately terminate the Agreement by giving written notice to that effect.
If Advanced terminates the Agreement pursuant to this clause, it is entitled to be paid the amount calculated pursuant to clause 28 herein.
- Termination by Default: If either party considers that the other party is in Substantial Breach of the Agreement, then:-
- It must give the other party a Notice to Remedy Breach giving the defaulting party not less than ten (10) business days after the date on which the notice is given in which to either:-
- Remedy those breaches capable of being remedied in that time; or
- If any breach is incapable of being remedied in that time, substantially commence to remedy such breach;
- If the party in Substantial Breach does not remedy such breach or substantially commence to remedy such breach as set out in clause 27.1 herein, the other party may terminate this contract by giving notice in writing to that effect.
- It must give the other party a Notice to Remedy Breach giving the defaulting party not less than ten (10) business days after the date on which the notice is given in which to either:-
Nothing in this clause affects either party’s rights at common law in relation to any breach of the Agreement.
- Consequences of termination by Customer: If the Customer terminates an Agreement, the Customer must pay Advanced:-
- The reasonable value of any Work, including variations, that it has performed to the date of termination, including an amount for profit and overheads; and
- Its costs for quitting the Site, including the removal of its plant and equipment;
- The cost of any goods purchased by Advanced for provision to the Customer, except to the extent that such goods may be returned to the person who sold them to Advanced;
- The cost of any goods ordered by Advanced for provision to the Customer, except where any such order can be cancelled without penalty. If Advanced can cancel an order but with a penalty, the amount of the penalty is a debt due and owing by the Customer to Advanced;
- Any other costs or losses incurred by Advanced directly or indirectly caused by the termination of the Agreement.
- Notices: Any notice from one party to the other may be given by:
- Delivering it by hand to the other party;
- Posting it by express post to the other party’s last known address or, in the case of a company, its registered office;
- Sending it by facsimile transmission to the party’s last known facsimile number; or
- Emailing it to the party’s last known email address.
For the purposes of this clause:-
- A party’s last known address includes:-
- Any address that forms part of the records kept by the Queensland Building and Construction Commission; and
- Any address that is included in any website maintained by or apparently maintained by the party to whom the notice is to be given.
- A party’s last known email address includes:-
- The last email address appearing on an email sent by the party to whom the notice is to be given; and
- Any email address appearing on a website maintained by or apparently maintained by the party to whom the notice is to be given.
- A notice sent by express post is deemed to have been delivered on the date that appears in the records kept by Australia Post as the date on which it was delivered;
- A notice sent by facsimile transmission is deemed to have been delivered on the date and at the time recorded on a confirmation of transmission;
- A notice that is sent by email is deemed to have been delivered on the date on which it was transmitted to the email server of the party to whom it was addressed;
- If a notice is served after 4pm on a day, it is deemed to have been received by the party to whom it was being delivered on the next Business Day.
- PPSA & PMSI;
- Defined terms in this clause have the same meaning as given in the Personal Properties Securities Act 2009 (“PPSA”)
- The Customer acknowledges that these conditions constitute a Security Agreement and give rise to a Purchase Money Security interest (“PMSI”) in favour of Advanced as Secured Party over the Goods supplied or to be supplied to the Customer or Grantor pursuant to these Conditions.
- The Parties acknowledge that Advanced is entitled to register its interest in the Goods supplied to the Grantor under these Conditions on the PPSA Register as Collateral.
- The Customer waives its right to receive notification of any such registration by Advanced.
33.1 Advanced represents, warrants and undertakes that:
(a) Neither it nor any of its employees has taken or will take any action, directly or indirectly, that would result in a violation of any applicable laws and regulations relating to bribery or corruption (together the “Anti-Corruption Laws”), and Advanced will take all reasonable measures to conduct its businesses in conformity with the Anti-Corruption Laws to prevent its employees from violating the Anti-Corruption Laws with the intent of obtaining or retaining business or an advantage for the benefit of the Customer or any of its affiliates;
(b) it will use reasonable endeavours to ensure that all specialists, sub-contractors, consultants or anyone used by Advanced in the provision of the Services provide (for the benefit of the Customer and its affiliates) the same representations, warranties and obligations as in clause 33.1a; and
(c) if subject to the Customer’s approval, Advanced appoints or delegates its or part of its functions or obligations under this agreement to a third party to act on behalf of or for the benefit of the Customer or any of its affiliates, then Advanced will use reasonable endeavours to ensure that all such third parties provide (for the benefit of the Customer and its affiliates) the same representations, warranties and obligations as per this agreement.