1. Definitions and Interpretation
In these Conditions and elsewhere in the Contract, unless a contrary intention appears the following shall mean:
Anti-Bribery and Anti-Corruption Legislation includes any statute, law, code, regulation or similar instrument in connection with the prohibition of bribery and corruption (including by virtue of the place of domicile or operations of AVE and the Client) including but not limited to the Criminal Code Act 1995(Cth), the Crimes Act 1914(Cth), the Financial Management and Accountability Act 1997(Cth), the Commonwealth Authorities and Companies Act 1997(Cth), the Corporations Act 2001(Cth) and the Bribery Act 2010(UK).
Client means the party described in Item 2 of the Contract Particulars or if no description has been provided, the entity to which AVE is providing the Services and/or Goods.
Completion Date means the date specified in item 7 of the Contract or any extension thereof which AVE must deliver the Goods and/or complete the Services.
Conditions means these standard AVE terms and conditions.
Contract means the agreement between the Client and AVE evidenced by the Conditions, the Contract Particulars and/or AVE Invoice, and all other documents which are listed in Item 9, of the Contract Particulars or incorporated by written reference into the Contract by AVE. The Conditions take precedence over all other documents including those listed in Item 9 and any other documents provided by the Client.
Contract Price means the total price submitted by AVE either as a lump sum fixed price, schedule of rates, cost plus or a combination of these as detailed in the Contract Particulars.
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 AVE), 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 AVE.
Goods means the goods, products, materials or equipment supplied by AVE in accordance with this Contract and specified in Item 3 of the Contract Particulars and /or AVE Invoice.
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.
PPSA means the Personal Property Securities Act 2009 (Cth)
AVE means Aus Voltage Electrical Pty Ltd (ABN 19 567 001 180) described in Item 1 of the Contract Particulars or if no description has been provided, the entity named in the AVE Invoice.
AVE Invoice means an invoice setting out the Services and/or Goods supplied to the Client by AVE and claiming payment for the provision of those Services and/or Goods.
Services means all the services AVE has agreed to perform for the Client under its offer and specified in Item 3 of the Contract Particulars and /or AVE Invoice.
Site means the location where the Services are to be performed.
Works means the scope of works being tendered for as detailed in AVE offer which is inclusive of the Goods and/or Services.
2. Validity Period
Our offer is open for acceptance for a period of thirty (30) days from the date of tender submission or such time as the parties agree in writing.
3. Deemed Acceptance
In the absence of written acknowledgement, the performance of any of the Works by AVE will be deemed acceptance of the Contract.
Unless otherwise stated, the Contract Price quoted is net and exclusive of Goods and Services Tax (GST).
Except as otherwise agreed by AVE in writing, the Client, shall pay all invoiced amounts in Australian dollars, without right of set off, within thirty (30) days from the date of the AVE Invoice
If the Client fails to pay AVE the full amount stated in the AVE Invoice in accordance with this clause, then AVE will charge interest on the amount unpaid by the Client at a rate of 2% over AVE commercial bank overdraft rate.
6. Access to Site
The Client must provide AVE access to the Site and possession of a sufficient portion of the Site to enable AVE to properly perform the Works without interference. AVE will be entitled to claim an extension of time and costs incurred as a result of any delay caused due to any interference of the Client or others on Site and/or delay in access to the Site.
7. Latent Conditions
Latent Conditions are physical conditions affecting the Site including artificial things but excluding weather conditions which differ materially from the physical conditions which AVE reasonably anticipated at the time of submitting its offer.
AVE will be entitled to claim an extension of time and reasonable costs directly incurred as a result of a Latent Condition.
8. Limitation of Liability
Notwithstanding any other provision of this Contract and to the full extent permitted at law, the total liability of AVE to the Client arising out of or in connection with this Contract for all loss, damage, cost or expense suffered or incurred whether in contract or tort
(including negligence), in equity, in restitution, by way of warranty or indemnity or under statute shall be limited to no more than fifty percent (10%) of the Contract Price.
9. Consequential Loss
Notwithstanding any other provision of this Contract and to the full extent permitted at law, neither party is 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 or loss of revenue.
10. Proportionate Liability
Subject to clauses 8 and 9 above, AVE shall be proportionately liable to the extent that AVE caused or contributed to such claim, demand, proceeding, cost, expense, loss, liability or damage under the Contract.
The Client shall reimburse AVE all reasonable costs including but not limited to overheads incurred by AVE for any delays except for delays caused by AVE itself.
If AVE does not deliver the Goods or complete the Services by the Completion Date AVE will pay to the Client as full and final remedy for delay, damages at the rate of 0.1% of the Contract Price per day to a maximum of 5% of the Contract Price in the aggregate. The Client agrees such damages are a genuine and reasonable pre-estimate of loss for delay arising out of the Contract.
12. Returned Goods
AVE is not under any duty to accept Goods returned by the Client. If AVE agrees to accept returned Goods from the Client, the Client must return the Goods to AVE at any place directed by AVE and on such other terms as AVE directs.
AVE reserves the right to make a reasonable charge for storage of the Goods or any component of the Client to be used in manufacture or supply of the Goods, if delivery instructions are not provided by the Client within 14 days of a request by AVE.
14. Title and Risk
14.1 AVE will deliver the Goods on the date as set out in Item 7 of the Contract Particulars to the place nominated in Item 8 of the Contract Particulars.
14.2 On the Client’s receipt of the Goods, all risk relating to the Goods passes to the Client. However, if the Client provides any components to AVE for inclusion in the Goods the risk of those components remains with the Client at all times. AVE will use all reasonable care to provide suitable storage of the Client’s components but will not be liable for any loss or damage.
14.3 It is acknowledged by the Client that AVE fulfils all of its obligations under this Contract once the Goods are delivered by AVE and received by the Client or collected by the Client, whichever the earlier.
14.4 Title in the Goods remains with AVE until all sums due and owing by the Client to AVE are paid in full notwithstanding the delivery, receipt, collection or passing of risk to the Client.
14.5 Until title of the Goods passes, AVE reserves and retains the following rights in relation to the Goods until all accounts owed by the Client to AVE are fully paid:
14.5.1 to enter the Client’s premises, or the premises of any associated entity or agent of the Client where the Goods are located, without liability for trespass or any resulting damage and retake possession of the Goods; and
14.5.2 to keep or resell the Goods repossessed under this clause.
15. Personal Properties Securities Act
15.1 In this clause 15 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.
15.2 The Client acknowledges that AVE has a purchase money security interest in the Goods including, but not limited to, where the Client has not paid for the Goods in full prior to delivery.
15.3 The Client acknowledges that if AVE has rights and interest in proceeds derived from the Goods such rights and interests constitute a security interest in such proceeds.
15.4 AVE 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 AVE determines in its absolute discretion). The Client must provide AVE with any information it requires for the purposes of giving effect to such registration.
15.5 For the purposes of section 157(3) of the PPSA, the Client irrevocably and unconditionally waives its right to receive any notice from AVE in connection with the registration of a financing statement or a financing change statement in respect of the Goods. 15.6 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.
15.7 The Client must take any steps (including provide information) AVE reasonably requires to perfect or otherwise ensure the enforceability and priority of any security interest.
15.8 Neither the Client nor AVE will disclose information of the kind described in PPSA section 275(1), unless section 275(7) of the PPSA applies.
15.9 Until AVE 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. If the Client breaches this subclause, the Client shall indemnify AVE for any cost, expense, loss or damage suffered.
16.1 AVE warrants that:
16.1.1 the Goods will be of merchantable quality and be free from substantial defect in workmanship;
16.1.2 any Goods manufactured or fabricated or Services performed by AVE or the Works will be performed to the standard agreed by the parties and as set out in Items 3 and 9 of the Contract Particulars;
16.1.3 AVE warrants the Goods for the period stated in Item 6 of the Contract Particulars, and where no period is stated, 3 months following receipt of the Goods and only insofar as the defect is a result of faulty workmanship of AVE or the use of substandard materials by AVE. If the Client finds a defect with the Goods or Services the Client must notify AVE in writing of the defect within seven (7) days of discovery of the defect and must take all reasonable precautions to prevent the use of the Goods;
16.1.4 AVE will be responsible for the costs of actual rectification/replacement works only and any associated costs (including removal or transportation costs) shall be borne by the Client; and
16.1.5 if AVE uses a subcontractor or supplier or other person to perform any work under the Contract (Other Person), any work, labour and services carried out by the Other Person shall only be warranted by AVE to the degree that the Other Person indemnifies AVE.
17. Defects Liability Period
17.1 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 AVE has supplied will be passed on to the Client on agreement with the manufacturer.
17.2 During the defects liability period, AVE will make good or replace (as the case may be) defective Goods and/or Services, excluding;
17.2.1 any interfacing between the Client’s equipment, Site, plant or design (unless expressly included as part of Services under the Contract);
17.2.2 ordinary wear and tear; and
17.2.3 any damage which has been caused or contributed by the Client’s negligence or acts or omissions.
18. Intellectual Property
AVE 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 AVE during the Contract.
AVE hereby grants to the Client a perpetual, irrevocable, non-exclusive, royalty free, transferable licence to use all Intellectual Property which is used or developed by AVE, for the purpose of or in connection with the Contract.
The Client acknowledges that AVE 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 AVE will not be liable for any claim whatsoever due to AVE use of the Client’s intellectual property.
The Client shall indemnify and hold harmless AVE against and from any claim alleging an infringement of all intellectual property rights, moral rights and ownership rights in any information provided by the Client to AVE.
AVE shall procure and maintain the insurances as specified and marked in Item 10 of the Contract Particulars.
The Client acknowledges and agree that any information submitted by AVE in its offer which includes but is not limited to pricing, technical specifications and other information is commercial in confidence and submitted solely for evaluation by the Client. Such information must at all times remain confidential and shall not be disclosed to any third party without AVE prior written consent.
If such information is disclosed to a third party with AVE prior 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.
21. Asbestos and other hazardous materials
The Client is responsible for ensuring Works being performed on the Client’s Site is in an asbestos and hazardous free environment. The Client is responsible for all costs arising as a result of the presence of asbestos, asbestos contaminated material or any other hazardous material in or on the Client’s Site where the Works are required to be performed.
To the extent of any inconsistencies, the Conditions prevail over any other document.
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 AVE cancels this Contract, the Client agrees and acknowledges that it will not prosecute any claim in law or in equity against AVE. The Client agrees if the Client cancels this Contract, it will pay to AVE all outstanding AVE Invoices and for all Goods and/or Services provided to the Client up to the date of cancellation and the Client indemnifies AVE against any losses incurred by AVE as a result of
24. Force Majeure
24.1 If performance by AVE of any obligation under the Contract is prevented, restricted or delayed by Force Majeure then AVE shall be excused from and shall not be liable for failure in performance to the extent of that prevention, restriction or delay and the time for performance shall be extended accordingly, subject to the terms of clause 24.2
24.2 If supply is delayed for more than four (4) months by Force Majeure and the parties have not agreed upon a revised basis for continuing the supply 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.
25. Dispute Resolution
If a difference or dispute between the parties arises in connection with the subject matter or interpretation of this Contract, including a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Contract (‘Dispute’), either party may by hand or registered post give the other party written notice of the dispute identifying and providing details of the dispute and entitled Dispute Notice (‘Dispute Notice’).
Within seven (7) days of receipt of Dispute Notice representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding. If a resolution or method of resolution has not been agreed within twenty one (21) days of the receipt of Dispute Notice, the General Manager of the parties shall confer for the same purpose as the parties’ representatives. All aspects of such conference(s) shall be privileged.
Neither party may institute legal proceedings in respect of any Dispute unless a Dispute Notice in respect thereof has first been given and then only after a period of twenty eight (28) days from receipt of such Dispute Notice has elapsed.
26.1 The Contract is governed by the law as stipulated in Item 11 of the Contract Particulars and the parties submit to the non-exclusive jurisdiction of those Courts. Where there is no jurisdiction stipulated in Item 11 the jurisdiction is Western Australia.
26.2 Any waiver partly or whole of the terms of the Contract will be valid only if in writing and signed by AVE.
26.3 Any provision of the Contract that is prohibited or unenforceable, such unenforceability shall not invalidate
the remaining provisions of the Contract nor affect the validity or enforceability of that provision.
26.4 These conditions (which can only be waived in writing and signed by an authorised representative of AVE) prevail over all conditions of the Client’s order or other documents.
26.5 If additional terms and/or conditions are attached to, incorporated into or accompany the Client’s order, those terms and/or conditions are not accepted by AVE and do not form part of the Contract unless expressly accepted in writing or signed by an authorised representative of AVE.
26.6 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
27. Anti-Bribery and Corruption
27.1 AVE is committed to operating in a manner consistent with the laws of the jurisdiction in which it operates, including laws relating to anti-bribery and anti corruption.
27.2 The Client represents and warrants it complies with Anti-Bribery and Anti-Corruption Legislation and that it has and maintains reasonable and effective anti-bribery and anti-corruption policies and procedures, such policies and procedures to be made available to AVE for inspection on demand.
27.3 The Client represents and warrants it has not and will not breach any Anti-Bribery and Anti-Corruption Legislation in connection with the Contract.
27.4 If the Client becomes aware of any breach or suspects a breach of Anti-Bribery and Anti-Corruption Legislation in connection with the Contract it must immediately notify AVE in writing and provide reasonable details of such breach or suspected breach and provide reasonable access to information, books and records relevant to such breach.
27.5 If AVE, acting reasonably, believes the Client has breached Anti-Bribery and Anti-Corruption Legislation in connection with the Contract, AVE must give the Client written notice of such. If the Client, within 30 days of that written notice, fails to show there is no reasonable basis to conclude a breach has occurred, AVE may terminate the Contract without further notice to the Client.
28. Building Code
28.1 Where applicable the Subcontractor must comply with the Building Code under the Fair Work (Building Industry) Act 2012 (“the Code”). Copies of the Code are available at http://www.fwbc.gov.au/what-building-code.
28.2 The Subcontractor shall permit the Commonwealth, including a person occupying a position in the Office of the Australian Building and Construction Commissioner, full access to construction sites or places covered by the Code to:
28.2.1 inspect any work, material, machinery, appliance, article or facility;
28.2.2 inspect and copy any record relevant to the Works the subject of this Contract;
28.2.3 interview any person;
28.2.4 request a party to this Contract to produce a specified document within a specified period, being not less than 14 days in person, by fax or by post; as is necessary to allow validation of its progress in complying with the Code.