Terms & Conditions

1. Definitions and Interpretation

In these Conditions, unless a contrary intention appears the following shall mean:

Business Day has the meaning provided in Schedule 2 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld).

Claim means any claim, action, proceeding or demand, however it arises and whether it is present or future, fixed or unascertained, actual or contingent but for the purpose of this Contract excludes a reference to a Payment Claim.

Client means the person or entity set out in the Quote or if no description has been provided, the entity for which EAS is undertaking the Works.

Completion Date means the date agreed in writing between EAS and the Client as the date by which EAS must complete the Works.

Conditions mean these terms and conditions.

Contract means the entire agreement between the Client and EAS, which comprises these Conditions, any Quote supplied by EAS to the Client, and any other document which is prepared by EAS and is stated to be a document which forms part of this Contract.

Contract Price means the total price submitted by EAS either as a lump sum fixed price, hourly rate, schedule of fees, cost plus including disbursements, or a combination of these, as detailed in the Quote.

EAS means Essential Air Solutions Pty Ltd ABN 99 607 444 315.

EAS Plant and Equipment means all goods, products, materials and equipment used by EAS for carrying out the Works other than Goods that are the subject of this Contract.

Force Majeure means act of God, act or omission of government, war, blockade, embargo, hostilities, fire, earthquake, flood, explosion, accident at sea, inclement weather conditions, industrial disputes (except where restricted to employees of EAS), sabotage or commotion, act or omission of the Client, or by any cause (whether similar or not to any of the above events) beyond the reasonable control of EAS.

Goods means the goods, products, materials or equipment supplied by EAS and associated with EAS provision of the Works or to be incorporated into the Works.

Hourly Rate(s) means the relevant hourly rate(s) set out in the Quote, or if no hourly rate is specified, the rate that EAS normally charges for work at the time the work is undertaken.

Information means documents, data, methods, material, preliminary design, specific requirements, specifications, calculations, test results and any other like information.

Insolvency Event means any of the following events occurring in relation to a Client or in the case of a corporate client, a Client’s Directors:

a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party;
the party or the party’s property or undertaking becomes subject to a personal insolvency arrangement under part X of the Bankruptcy Act 1966 (Cth) or a debt agreement under part IX of the Bankruptcy Act 1966 (Cth);
the party is unable to pay its debts when they fall due or is unable to pay its debts within the meaning of the Corporations Act 2001 (Cth), or is presumed to be insolvent under the Corporations Act 2001 (Cth); or
an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party, otherwise than for the purpose of an amalgamation or reconstruction.

Intellectual Property means any intellectual property whether protected by statute, at common law or in equity, including any patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know-how, trade secret, technical information, financial information, business method and confidential information.

Payment Claim means the written document produced by EAS for a progress payment setting out the Works provided by EAS to the Client to which the Payment Claim relates, stating the amount of the progress payment and requesting payment of the claimed amount in accordance with the Quote and shall include a written document:

declaring all subcontractors have been paid all amounts owed to them by EAS at the date of the Payment Claim; or
stating:
- the following for each subcontractor who has not been paid the full amount owed to them by EAS at the date of the Payment Claim-
  - the subcontractor’s name;
  - the amount still unpaid;
  - the details of the unpaid Payment Claim for the subcontractor;
  - the date the subcontractor carried out the construction work or supplied the related goods and services;
  - the reasons the amount was not paid in full; and
  - that all other subcontractors have been paid the full amount owed to them by EAS.

Payment Schedule is a written document that:

identifies the Payment Claim to which it responds; and
states the amount of the payment, if any, that the respondent proposes to make; and
if the amount proposed to be paid is less than the amount stated in the payment claim—states why the amount proposed to be paid is less, including the respondent’s reasons for withholding any payment.

PPSA means the Personal Property Securities Act 2009 (Cth)

Practical Completion is that stage in the execution of the Works when the Works are complete except for minor defects and omissions:

which do not prevent the Works from being reasonably capable of being used for their intended purposes; and
rectification of which will not prejudice the convenient use of the Works.

Quote means the written document documenting the Works, Contract Price and Completion Date provided by EAS to the Client.

Site means the location where the Works are to be performed, as specified in the Quote.

Works means the construction work or services that EAS has agreed to perform for the Client as specified in the Quote.

2. Definitions and Interpretation

The Quote constitutes an offer made by EAS, and is open for acceptance for a period of thirty (30) days from the date of its submission to the Client or for such other time as the parties agree in writing.

3. Deemed Acceptance

In the absence of written acknowledgement, an instruction by the Client to EAS to perform the Works, or any part of the Works, will be deemed acceptance of the Contract.

4. Contract

The parties agree that this Contract apply and will continue to apply to the Works notwithstanding the receipt by EAS of any other terms or conditions by the Client regarding the Works. To the extent of any inconsistency, this Contract prevail.

For the avoidance of doubt, the order of precedence shall be:

these Conditions;

Any quote provided by EAS; and
Any other document provided or expressly agreed to in writing by EAS.
To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, has no effect except to the extent expressly set out or incorporated by reference in this Contract.

5. Contract Price and Payment Procedure

The Contract Price is the sum specified in the Quote. Unless otherwise stated, the Contract Price is net and exclusive of Goods and Services Tax (GST).
On attaining each of the milestones described in the Quote (if any), the EAS will submit to the Client a Payment Claim for the relevant amount in the Quote. EAS will accrue a reference date for the making of a Payment Claim on the first (1^st) and third (3^rd) day of each month until paid the Contract Price.
The Client shall within six (6) business days of receipt of a Payment Claim made in accordance with subclause 2 pay to EAS the amount set out in that Payment Claim by direct credit transfer to EAS nominated bank account.
The Client may prior to paying a Payment Claim made in accordance with subclause 3 require the Works to be inspected to ascertain whether the Works have reached a specified stage for the purpose of payment of the Payment Claim as set out in the Quote.
The Client must issue a Payment Schedule stating whether the Works have reached the specified stage for the purpose of payment of the progress payment as set out in the Quote. Subject to a Notice of Dispute being issued under clause 1 within six (6) business days of delivery of the Payment Schedule under this clause 5.4, the certificate issued will be accepted by both parties as conclusive evidence of the matters set out in the certificate.
In the absence of a Payment Schedule issued by the Client to EAS, within six (6) business days of delivery of the claim to the Client, to the effect that the Works has not reached the relevant specified stage, then the full amount of the Payment Claim is deemed payable.
- If:
- The Client fails to pay a progress payment in accordance with clause 5; or
- The Client disputes the validity of a Payment Claim in accordance with clause 5 and it is subsequently determined that such Payment Claim has been validly made and the Client then fails to pay such Payment Claim within 1 business day after such determination;
- then the Client shall be deemed to be in substantial breach of this agreement and, in addition to any other remedies available to it at law EAS shall be immediately entitled to suspend the Works and shall be entitled to an extension of the time for completion of the Works in respect of any period during which the Works are so suspended.
The Client must pay to EAS on written demand, interest on all amounts due and payable under this Agreement and unpaid at the rate of interest charged by EAS’ commercial bank overdraft rate plus 2% per annum from the due date up to and including the date of actual payment, whether before or after any judgment, capitalised at the end of each 30 day period after the due date.
The Client must pay all monies to EAS by payment to such a bank account as EAS may notify the Client before 11 am in immediately available funds without set off or counterclaim or any withholding and free and clear and without deduction for any Taxes. If the Client is compelled by law to make a deduction for a Tax so that EAS will not receive the full amount it is due as provided in this Agreement then:
- The amount due under this Agreement will be increased so that after making that deduction EAS receives the amount it would have received had no deduction been made;
- The Client must make the deduction; and
- The Client must pay the full amount deducted to the relevant taxation or other authority in accordance with the applicable law and deliver the original receipt for payment to EAS.
If any payment under this Contract is due on a day which is not a Business Day, the due date is the immediately preceding Business Day.
EAS shall be entitled to recover from the Client any damages sustained or incurred by it as a result of delay in progress of the works by any cause or causes beyond the control of EAS being an act, default of omission on the part of the Client.

6. Access to Site

The Client must provide EAS with access to the Site necessary for EAS to undertake the Works and possession of a sufficient portion of the Site to enable EAS to properly perform the Works without interference.
EAS will be entitled an extension of time and any costs incurred as a result of any delay caused due to any interference of the Client or others on the Site and/or delay in getting access to the Site.
It shall be the obligation of the Client to ensure that EAS is allowed access to the Site and all services (electricity, gas, water etc) are available at the Site to meet EAS’ requirements for carrying out the Works. Under no circumstances shall EAS be liable for any delays to the Works as a result of EAS being denied access to the premise and in the event that EAS is denied access to the Site and cannot carry out the Works then EAS shall be entitled to render a daily charge in respect of EAS’ stand-down costs for the period that EAS is denied access to the Site.
For the purposes of this clause the phrase “denied access to the Site” shall include EAS being denied any services necessary to carry out the Works.

7. The Works

EAS will undertake the Works with due skill, care and diligence, in a proper workmanlike manner and in accordance with all applicable industry standards.
The Client must ensure that its employees, consultants, agents and contractors cooperate with EAS and do not interfere with or delay delivery of the Works. EAS will be entitled to an extension of time and any costs incurred as a result of any delay caused due to any interference by the Client or others to delivery of the Works.
EAS may bring onto Site EAS Plant and Equipment and/or goods that are not sold to the Client, but which are used by EAS in carrying out the Works. In this circumstance:
- - title in the EAS Plant and Equipment and goods remains at all times with EAS; and
  - EAS may enter the Site at any time to retake possession of any EAS Plant and Equipment and goods without liability for trespass or for any resulting damage.

8. Assignment and Subcontracting

Neither party shall, without the prior written approval of the other, assign this Contract or any payment or any other right, benefit or interest hereunder.
EAS shall be entitled to subcontract as much of the works as it considers reasonable and necessary in its absolute discretion. EAS shall remain liable to the Client for the acts, defaults and omissions of subcontractors.

9. Completion Date

EAS will use its best endeavours to carry out the Works on or before the Completion Date.

10. Information and Documents

The Client must provide all Information to EAS, including answers to any questions that EAS may ask to enable EAS to carry out the Works. The Client is solely responsible for confirming the completeness and accuracy of all Information provided to EAS. EAS is not obliged to check or review any Information provided by the Client, for the purpose of assessing completeness or accuracy unless that is part of the Works. EAS will be entitled to an extension of time and any costs incurred as a result of any delay in provision of Information by the Client or others to EAS or as a result of any information being inaccurate.

The Client must pay to EAS on written demand, interest on all amounts due and payable under this Agreement and unpaid at the rate of interest charged by EAS’ commercial bank overdraft rate plus 2% per annum from the due date up to and including the date of actual payment, whether before or after any judgment, capitalised at the end of each 30 day period after the due date.

11. Warranty and Performance

Notwithstanding any other provision of this Contract and to the full extent permitted at law, EAS neither offers nor gives any warranty for any Goods supplied by EAS to the Client.
The Client is responsible for the performance of all Goods at Site. EAS will not be liable for any Claim arising from or in any way connected to the misapplication, abuse, improper use, construction, installation or abnormal conditions of operation of any of the Client’s equipment or parts of equipment on the Site.

12. Limitation of Liability

Notwithstanding any other provision of this Contract and to the full extent permitted at law, if EAS is liable for any loss, damage, cost or expense out of or in connection with this Contract, EAS’s total liability will be limited to no more than fifty percent (50%) of the Contract Price.

13. Consequential Loss

Notwithstanding any other provision of the Contract and to the full extent permitted at law, EAS will not be liable for any indirect, special, contingent or consequential type losses or damages which includes but is not limited to loss of actual or anticipated profits, loss of opportunity, loss of goodwill and loss of revenue.

14. Delays

The Client will reimburse EAS all reasonable costs including but not limited to overheads incurred by EAS for any delays, except for delays caused by EAS itself.

15. Defects Liability Period

The defects liability period will commence from the Completion Date or upon issue of the certificate of Practical Completion for the Works, whichever is earlier, and shall be for a period of 12 months, unless otherwise stated in the Contract. Any additional warranty provided by a manufacturer for Goods which EAS has supplied will be passed on to the Client on agreement with the manufacturer.
During the defects liability period, EAS will make good or replace (as the case may be) defective Works, excluding:
- Any interfacing between the Client’s equipment, Site, plant or design (unless expressly included as part of the Works);
- Ordinary wear and tear; and
- Any damage which has been caused or contributed by the Client’s negligence or acts or omissions.

16. Personal Properties Securities Act

In this clause 16 words and expressions which are not defined in these Conditions, but which have a defined meaning in the PPSA have the same meaning as in the PPSA.
The Client acknowledges that EAS has a purchase money security interest in Goods sold to the Client including, but not limited to, where the Client has not paid for the Goods in full prior to delivery.
The Client acknowledges that if EAS has rights and interests in proceeds derived from the Goods, such rights and interests constitute a security interest in such proceeds.
EAS may register any security interest on the PPSA register in any manner it chooses (including by registering one or more financing statements in relation to its interest in the Goods, with such expiry dates as EAS determines in its absolute discretion). The Client must provide EAS with any information it requires for the purposes of giving effect to such registration.
For the purposes of section 157(3) PPSA, the Client irrevocably and unconditionally waives its right to receive any notice from EAS in connection with the registration of a financing statement or a financing change statement in respect of the Goods.
If section 95 or chapter 4 of the PPSA would otherwise apply to the enforcement of any security interests then those provisions are excluded, to the extent possible.
The Client must take any steps (including providing information) EAS reasonably requires to perfect or otherwise ensure the enforceability and priority of any security interest.
Neither the Client nor EAS will disclose information of the kind described in PPSA section 275(1), unless section 275(7) of the PPSA applies.
Until EAS security interest (whether perfected or not) is satisfied, the Client agrees not to cause or allow a security interest of higher priority to be created in the Goods.

17. Intellectual Property Rights

EAS retains all Intellectual Property and ownership rights of such in any Intellectual Property and other information relating to the Works which is created or modified by EAS during the Contract.
The Client acknowledges that EAS will not be responsible for any infringement of any intellectual property of the Client that the Client has in any components, material or additional documents and EAS will not be liable for any Claim whatsoever due to EAS use of the Client’s intellectual property.
The Client agrees to indemnify and hold harmless EAS against and from any Claim alleging an infringement of any intellectual property rights, moral rights and ownership rights in any Information provided by the Client to EAS.

18. Insurance

EAS will maintain professional indemnity insurance, public liability insurance and any other insurance policies reasonably expected to be held by a provider of services of the kind provided for under this Contract.

19. Confidentiality

The Client acknowledges and agrees that any Information submitted by EAS in its Quote or other contract documents, which includes, but is not limited to, pricing, technical specifications and other like information is commercial in confidence and submitted solely for evaluation by the Client. Such information must at all times remain confidential and must not be disclosed to any third party without EAS prior written consent.
If such information is disclosed to a third party with EAS prior written consent, the Client must ensure that as a condition precedent to the passing of such information that the third party accepts and acknowledges to be bound by confidentiality obligations.

20. Notices

Any and all notices to be given hereunder shall be given to the parties:
- to the Client by the details nominated on the Quote
- to EAS by:
  - Post: Shed 2/3-5 Salvado Drive, Smithfield QLD 4878
  - Email: admin@essentialairsolutions.com.au
- Any such Notice shall be deemed to have been given:
  - In the case of Post, three (3) business days from the date of posting; or
  - In the case of Email, in accordance with the Electronic Transactions (Queensland) Act which is the time the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated herein.

21. Cancellation

Either party has the right to cancel this Contract because of any event beyond the reasonable control of either party which alters the ability of the cancelling party to fulfil the terms of this Contract.
If EAS cancels this Contract, the Client agrees and acknowledges that it will not prosecute any Claim against EAS.
The Client agrees if the Client cancels this Contract, it will pay to EAS for any Works provided by EAS to the Client up to the date of cancellation, and the Client indemnifies EAS against any losses incurred by EAS as a result of the termination.

22. Force Majeure

If by Force Majeure, EAS is unable to meet its obligations under the Contract, EAS will be excused from meeting its obligations under the Contract and will not be liable for failure in performance to the extent of that prevention, restriction or delay.
If, by Force Majeure, the Completion Date is delayed for more than four (4) months and the parties have not agreed upon a revised basis for continuing the supply of the Works at the end of the delay, then either party may after that period and while the cause of non-performance still exists terminate the Contract by not less than 30 days’ notice in writing to the other party.

23. Indemnity

The Client agrees to indemnify and keep indemnified EAS against all loss, damage, costs and expenses suffered or incurred by EAS due to the failure of the Client to observe or perform any or all of these Conditions.

24. Insolvency Event

If the Client is subject to an Insolvency Event, EAS may, at its absolute discretion, immediately terminate this Contract without regard to clause 25.

25. Dispute Resolution

If a difference or dispute between the parties arises in connection with the subject matter or interpretation of this Contract (‘Dispute’), the following process must be followed by the parties:
- either party may by hand or registered post give the other party written notice of the Dispute identifying and providing details of the Dispute (‘Dispute Notice’);
- within seven (7) days of receipt of the Dispute Notice, representatives of the parties having authority to bind the parties must confer to seek to resolve the Dispute or agree on a method for doing so.
If the dispute has not been resolved in accordance with clause 1 either party may require that the matter at issue be submitted for arbitration and specifying with detailed particulars the matter at issue, and thereupon the matter at issue shall be determined by arbitration. Arbitration shall be effected by a single arbitrator mutually agreed upon in writing between the Client and EAS, or failing such agreement, by an arbitrator appointed by the President of the Australian Institute of Arbitrators (Queensland Chapter) and the arbitration proceedings shall be conducted in Queensland. The arbitrator shall have all powers conferred by those laws and it shall be competent for him to enter upon the reference without any further or more formal submission than is contained in this Clause.
Without prejudice to the generality of his or their power, the arbitrator may:-
- Direct such measurements or valuations or both of them as may in his opinion be desirable to determine the rights of the parties;
- Open up, review and revise any certificate assessment order, determination, opinion, direction, requisition or notice.
- For the purposes of clause 1, a dispute shall not include a Claim by the Client for indemnity or contribution by EAS in relation to any Claim made by a third party in respect of injury, loss or damage.
- Neither party may institute legal proceedings in respect of any Dispute unless clauses 1 has been complied and then only after a period of twenty-eight (28) days from the date the Dispute Notice was received by the recipient of the Dispute Notice.
- Nothing in this clause 25 shall prejudice the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.

26. General

The Contract is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of those Courts.
Any wavier of part or the whole of the terms of the Contract will be valid only if in writing and signed by EAS.
If a provision of this Contract is prohibited or unenforceable, the offending provision must be severed from this Contract, and such unenforceability will not invalidate the remaining provisions of the Contract.