All prices are quoted on the basis of costs of labour, fixtures and materials at the date of the Quotation and are valid for a period of thirty (30) days.
2.0 ACCEPTANCE OF QUOTATION
The Client has requested Environmental Logistic Solutions Pty Ltd
(Herein after abbreviated to ELS) to quote for Works and ELS has provided the Quotation to the Client, which the Client must accept or reject within thirty (30) days of its receipt.
ELS may, at its option, extend this period by notification in writing to the Client.
ELS may, at its absolute discretion and without incurring any liability to the Client whatsoever, revise or withdraw the Quotation at any time before communication by the Client to ELS of its acceptance of the Quotation in writing.
The Client may accept a Quotation and authorise the Works to commence, subject to the Terms herein by sending ELS a letter acknowledging and agreeing to the Terms of the Quotation or signing and returning the tear-off portion of the Quotation by ELS.
The parties will be deemed to have formed a Contract upon the communication by the Client to ELS of its acceptance of the Quotation in writing.
The parties agree that ELS is to complete the Works in accordance with the Terms of this Contract.
3.0 VARIATIONS AND ALTERATIONS
All extra’s or alterations not included in the Quotation shall be requested in writing and the Cost of same agreed by the parties in writing by the parties executing a Notification and Consent on Variation before ELS is required to commence work on such extra’s or alterations.
4.0 REMOVAL OF MATERIALS
Any materials removed from the Client’s premises in connection with the Works authorised overleaf and not re-used on the job shall be the property of ELS unless otherwise agreed.
5.0 DEFECTS IN EXISTING INSTALLATION
Should ELS in the course of any work authorised, discover any defect in any part of the Site, premises or the existing installation therein or connection thereto which makes it impracticable or inexpedient for ELS to continue work under this Contract without repairing or replacing any part of said Site, premises, installation or connection (and ELS shall be the sole judge thereof), ELS shall be entitled to suspend work on the job and shall immediately notify the Client thereof and submit the price of such additional work in accordance with Clause 3 herein and if the Client shall fail to sign the Notification and Consent on Variation for ELS to carry out the same this Contract shall be deemed at an end and ELS shall be entitled to payment for all work done and materials supplied to date of the suspension of the Work, notwithstanding anything to the contrary contained in this Contract.
6.0 DEFECTIVE FOUNDATIONS, ETC…
ELS shall not be liable for any loss or damage resulting from insufficient or defective foundations, walls or other structure not erected by ELS or the Site not being prepared to enable ELS to affect the Works.
The Client indemnifies ELS for any damages or loss ELS suffers resulting from such insufficient or defective foundations, walls or other structure not erected by ELS or the Site not being prepared to enable ELS to effect the Works.
The Cost of shoring for work over 1.5m in depth and unstable areas and dewatering the Site to be able to affect the Works is not included in the Price. The extra Cost of such work shall be incurred by the Client to be addressed in accordance with Clause 3 herein.
7.0 TREE ROOTS AND MADE UP GROUND
This Quotation does not cover concreting or other special treatment of drains on account of proximity of trees, made up ground or other causes. If concreting or the use of cast iron is ordered by any competent statutory authority, statutory authority inspector or person authorised by such an authority an additional charge calculated at the rate appearing on the Quotation per lineal metre of drain so treated will be incurred by the Client.
In the case of tree roots, the removal of the offending trees shall be at the discretion of the Client. The extra cost of such removal shall be incurred by the Client to be addressed in accordance with Clause 3 herein.
8.0 ROCK AND REEF
This Quotation does not cover the removal by mechanical means or blasting of rock, reef or abnormal ground which may be encountered in the course of excavation. Should this eventuate an additional charge is payable by the Client for it is not included in the Price. This is to be calculated at the rate appearing on the face of the Quotation for either;
- Per cubic metre of rock or reef removed; or
- Removal by mechanical means per machine hour worked, whichever has been selected. A “large machine” means a machine exceeding seven-tonne.
The amount of rock or reef or time necessary to remove it will, as appropriate, be measured and agreed with the Client or its representative prior to the backfilling of the exactions.
The cost of removal of surplus rock from the Site is not included in this Price and shall be an extra cost to the Client to be addressed in accordance with Clause 3 herein.
9.0 EXISTING SERVICES
For the purpose of this Quotation, it is assumed the existing services are in good order. The reinstatement of said services cut or damaged by ELS during the course of these works is included in the price but if there is any renewal for reasons not reasonably expected or caused by ELS (in its sole discretion) an extra cost shall be incurred by the Client to be addressed in accordance with Clause 3 herein.
Any damage to existing utility services not located by the Client and not able to be reasonably located by ELS will be repaired +at the Client’s cost and is not included in the Quotation. Such damage shall be considered as an extra cost payable by the Client to be addressed in accordance with Clause 3 herein.
10.0 EXTRA WORK ARISING OUT OF EXISTING INSTALLATIONS
For the purposes of this Quotation, it is assumed that existing installation comply with statutory regulations. Any work additional to the Works to be performed which is ordered by any competent statutory authority, local authority inspector, or person authorised by such authorities will be charged as an extra. Such additional work shall be considered as an extra cost payable by the Client to be addressed in accordance with Clause 3 herein.
11.0 REMOVAL OF SPOIL
Surplus excavated material will be stacked neatly in heaps in positions convenient for topping up trenches after subsidence. If removal from the Site is demanded, an additional charge for this service will be made. Such removal shall be considered as an extra cost payable by the Client to be addressed in accordance with Clause 3 herein.
12.0 CLIENT’S MATERIALS
If any fixtures, fittings, or materials are supplied by the Client, all care will be taken but fixtures, fittings and materials so supplied will be stored, handled and installed at the Client’s risk.
13.0 SUSPENSION IN DEFAULT OF PAYMENT
Without prejudice to any other rights of ELS, where the Client fails to make any payments due hereunder on the due dates ELS shall be entitled to suspend the Works until payment is made and if default continues for a period of seven (7) days thereafter ELS shall be entitled to determine the Contract and in addition to any other rights which may be conferred upon him at law or at equity shall be paid for work and labour done and materials supplied to date of suspension.
14.0 COMPLETION AND DELAYS
ELS agrees to complete all works authorised in a good and workmanlike manner as soon as is reasonably practicable and whether or not a definite date for completion has been quoted shall not be responsible for any delay in completion or damage occasioned directly or indirectly by weather conditions, labour disputes, accidents, fire, Act of God, Civil Riots, shortages of material or difficulty in securing labour or any cause beyond the reasonable and practicable control of Crown Paf.
15.0 TITLE TO MATERIALS AND EQUIPMENT
15.1 In connection with the materials while they remain the property of ELS, the Client agrees with ELS that:
15.1.1 The Client has no right or claim to any interest in the materials to secure any liquidated or unliquidated debt or obligation ELS owes the Client;
15.1.2 The Client cannot claim any lien over the materials;
15.1.3 The Client will not create any absolute or defeasible interest in the materials in relation to any third party except as may be authorised by ELS;
15.1.4 Where the Client is in actual or constructive possession of the materials;
15.1.5 The Client will not deliver them or any document of title to the materials to any person except as directed by ELS; and
15.1.6 It is in possession of the materials as a bailee of those materials and owes ELS the duties and liabilities of a bailee.
15.2 In connection with the materials, ELS states to the Client that:
15.2.1 ELS have the right to supply the materials to the Client;
15.2.2 The activities of ELS in supplying the materials do not infringe the rights of the owner of the materials (where ELS is not the owner of the materials);
15.2.3 If the materials are not owned by ELS, that ELS is authorised to supply the materials to the Client;
15.3 ELS and the Client agree that:
15.3.1 The property of ELS in the materials remains with ELS until ELS has been paid in full under this Contract;
15.3.2 The Client is the bailee of the materials until such time as property in them passes to the Client and that this bailment continues in relation to all of the materials until the Price has been paid in full. Whilst acting as bailee, the Client shall not, except with the prior written consent of ELS, and subject to the provisions herein, return materials and equipment to ELS. If after the due delivery date, materials and equipment remains in, or is returned to the possession of ELS, the Client shall pay such an amount for storage and any other handling charges as ELS may determine;
15.3.3 Pending payment in full of the Price under this Contract, the Client:
(a) Must not supply any of the materials to any person;
(b) Must not allow any person to have or acquire any security interest in the materials;
(c) must insure the materials for their full insurable or replacement value (whichever is the higher) with any insurer licensed or authorised to conduct the business of insurance in the place where the Client carries on business, resides or a location in which the materials are being stored by or for the Client; and
(d) Must not remove, deface or obliterate any identifying plate, mark or number on any of the materials;
(e) Shall not use or incorporate ELS’s materials and equipment in any construction or sell, lease or otherwise dispose of same.
15.4 Despite Clause 15.3, if the Client supplies any of the materials to any person before all moneys payable by the Client have been paid to ELS (and have not been claimed or clawed-back by any person standing in the place of / or representing the Client), the Client agrees that:
15.4.1 It holds the proceeds of re-supply of the materials on trust for and as agents for ELS immediately when they are receivable or received;
15.4.2 It must either pay the amount of the proceeds of re-supply to the seller immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for ELS;
15.4.3 Any accessory or item which accedes to any of the materials by an act of the Client or of any person at the direction or request of the Client becomes and remains the property of ELS until ELS is paid in accordance with Clause 15.3.1 when the property in the materials (including the accessory) passes to the Client; and
15.4.4 If the Client fails to pay the Price within the period as stated in this Contract, ELS may recover possession of the materials at any site owned, possessed or controlled by the Client and the Client agrees that ELS has an irrevocable licence to do so;
15.4.5 For the purpose of giving full effect to this Contract and the powers hereby conferred, whilst any monies now or from time to time are owing by the Client to ELS, the Client appoints ELS and any of its authorised officers, jointly and each of them severally, the true and lawful attorney and attorneys of the Client to do anything in the name of the Client or ELS which the Client should do or should have done hereunder and to do all such acts, matters and things as such attorney or attorneys may deem expedient for carrying out, or in connection with the exercise of all or any of the rights or powers herein contained or implied to give effect to this Contract or for the enforcement thereof and this power of attorney is deemed irrevocable and given by way of security;
15.4.6 The Client does hereby agree to charge all of their respective real and personal property wheresoever situated with the amount of monies owed by the Client to ELS hereunder. As further and better security for the repayment of all money from time to time owing by the Client to ELS, the Client mortgages and charges to and in favour of ELS all right, title, estate and interest which the Client now holds or may hold hereafter acquire and hold in any personal property in Australia. The Client shall, at the request of ELS sign, execute and deliver in favour of ELS a bill of sale, mortgage or charge over the Client’s personal property in registrable form as ELS may require, such documentation or documents incorporating the usual terms, conditions and covenants to protect the interest of ELS hereunder, within five (5) days of ELS requesting the same of the Client;
15.4.7 The Client and ELS covenant and agree that ELS has a caveatable interest in the land of the Client for the purposes of the Land Title Act 1994.
16.1 The Client shall pay ELS the Deposit stated in the Quotation upon the signing or acceptance of the Quotation.
16.2 The Client will pay ELS the Price by way of progress payments, calculated in accordance with Clause 16.3.
16.3 ELS shall submit to the Client written requests for progress payments on the dates detailed in the Quotation which shall be in the Form of a proper and valid Tax Invoice, in accordance with the GST legislation, and consist of:
(a) Details of the Works which have been completed and the amounts payable in relation to such Works; and
(b) Details and amounts of any other amounts then payable to ELS under the Contract.
16.4 The Client must pay ELS progress payments in accordance with the written claims supplied by ELS in accordance with Clause 16.3 within ten (10) days of submission of the progress claim in the form of a proper and valid Tax Invoice by ELS.
16.5 Should the Client neglect or refuse to pay the amount of any progress payment by the due date, and then ELS may, at its option, with or without notice to the Client, suspend performance of the Works until such payment has been received in full.
16.6 The Client acknowledges that the following applies if the BCIPA applies to this Contract:
(a) That a progress claim of ELS can be endorsed to become a Payment Claim under BCIPA;
(b) If ELS withdraws a Payment Claim for the purposes of pursuing a charge under the “Sub-contractors Charges Act” (if applicable) then the Payment Claim will continue to be a progress Claim under this Contract and be effective from the original date it was submitted to the Client;
16.7 A Payment Claim can be served on the Client within the later of:
(a) 24months from when all the Works have been completed; or
(b) 12 months from the expiry of any retention period (if applicable).
16.8 If a Payment Claim is served on the Client, then the parties agree that if the Client is to serve a Payment Schedule on ELS that service of such Payment Schedule is to be effected within ten (10) days of the Payment Claim being served on the Client.
16.9 If ELS is not paid for any of the Works undisputed by the Client or deemed valid by the Courts or an adjudicator under the BCIPA on the due date specified in any invoices, progress claims or Payment Claims sent to the Client pursuant to this Contract, without prejudice to any other right or remedy, all outstanding monies shall bear interest on daily balances until paid at the Reserve Bank official interest rate plus 10% and such money together with all interest shall be recoverable forthwith from the Client.
17.0 RETENTION OF MONIES
17.1 If the parties agree in writing that the Client shall retain retention monies from the Price, then such retention monies shall be limited to 10% of each progress payment. Once retention monies equal 5% of the Price, no further retention monies shall be retained by the Client. Retention monies may be in the form of a Bank Guarantee in lieu of cash at ELS’s option. Any retention monies, bank guarantees or other forms of retention held by the Client are to be reduced to no more than 2.5% of the Price on the Completion Date and any retention monies, bank guarantees or other forms of retention in excess of 2.5% of the Price are to be returned or released to ELS on that date.
17.2 If ELS does not comply with a reasonable direction of the Client to remedy any defects in the Works before the expiry of the Defects Liability Period, the Client may have that work carried out by others and the reasonable cost of same will constitute a debt due, owing and payable by ELS to the Client as limited by Clause 21.
The Client may set-off such debt against a retention held which becomes due, owing or payable to ELS in connection with this Contract.
17.3 The balance of the retention is to be returned or released by the Client to ELS on or before the expiry of the Defects Liability Period.
18.1 ELS must carry out and complete the Works:
(a) Using materials that are of good quality and suitable for the purpose for which they are being used, and unless otherwise stated, are new;
(b) In the accordance with accepted trade practice and professional manner;
(c) With all reasonable care, skill and expertise;
(d) Complying with all terms and provisions of the Contract Documents;
(e) Complying fully with the relevant law and all legal requirements;
(f) Complying with all reasonable directions and instructions from the Client; and
(g) By the Completion Date.
18.2 ELS must supply everything necessary to complete the Works, including but not limited to, all tools and materials.
18.3 ELS may engage sub-contractors or any third party for the purpose of completing the Works provided such person(s) are careful, skilled and experienced in their respective trades or occupations. ELS will be solely responsible for any and all payments to any of its sub-contractors or third party for that part of the Works performed by it.
19.1 The Quotation is based on a continuous work programme, unless otherwise stated. If the Client or events, people or circumstances beyond the immediate control of ELS causes the Works to be delayed, then the performance of ELS’s obligations under this Contract shall be suspended for the period of such delay and the Completion Date shall be extended accordingly.
19.2 Where ELS has been granted an extension of time under this Clause, the Client shall pay to ELS such extra costs as are necessarily incurred by ELS by reason of the delay.
20.0 DISPUTE RESOLUTION
20.1 Any dispute between the Client and ELS arising under or in connection with this Contract shall:
20.1.1 In the first instance, be referred by one party to the other and the party shall use all reasonable endeavours to resolve the difference or dispute without resort to future process; and
20.1.2 If the difference or dispute cannot be resolved in such a manner within five (5) days of the difference or dispute arising then it shall be referred to an Expert.
20.2 As to that determination:
(a) The Expert acts as an expert and not as an arbitrator;
(b) The Expert must take written submissions from each party if those submissions are received within the time limit set by the Expert;
(c) The Expert’s decision is final and binding;
(d) The Expert is obliged to give reasons;
(e) Each party must direct the Expert to provide a decision within five (5) Business Days of its appointment; and
(f) The Expert’s costs shall be paid by the party determined by the Expert to be the party responsible for the payment of the Expert’s costs.
20.3 Nothing contained herein shall override the rights of the parties to Adjudication under the BCIPA (if applicable).
21.0 LIMITATION OF LIABILITY
21.1 Subject to Clause 21.2 herein and to the extent permitted by the Trade Practices Act and relevant state legislation, the sole obligation of ELS under this Contract is to effect the Works and repair or replace (at ELS’s discretion) any parts which are found to be defective during the Defect Liability Period and in no event shall ELS be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the products, and any indirect, special or consequential damages or injury to any person, corporation or other entity.
21.2 If any goods or services supplied pursuant to this Contract are supplied to the Client as a “econsumer” of goods or services within the meaning of that term in the Trade Practices Act 1974 as amended or similar state legislation the Client will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Trade Practices Act or similar legislation is so conferred.
However, if the goods or services are goods or services not ordinarily acquired for personal, domestic or household use or consumption pursuant to s 68A of the Trade Practices Act and similar provisions of relevant state legislation, ELS, at its election, limits its liability to the payment of an amount equal to the lowest of:
(a) The cost of replacing the goods or services;
(b) The cost of repair of the goods or services; or
(c) The cost of having the goods or services repaired or replaced.
21.3 Subject to Clause 21.2, ELS is not to be liable for default or failure in performance of its obligations pursuant to this Contract resulting directly or indirectly from Acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials including ink, chemicals and paper, labour or transportation or any other cause beyond the reasonable control of ELS.
21.4 Subject to Clause 21.2, ELS is not responsible for any loss caused by an error or defect in the products or errors or faults caused by consumable product (e.g. fuse, washer, etc…) or water, sewerage services or power supplied or not supplied by any person or entity.
22.1 Any notice required to be given by one party to the other party under this Contract must be in writing and:
(a) Delivered by hand at the address of the addressee set out in this Contract or the other address (if any) notified by the other party to be the address for service of notices;
(b) Sent by ordinary prepaid post to that address; or
(c) Sent by facsimile to the facsimile number of the addressee.
22.2 A notice is deemed given and received:
(a) If delivered, upon delivery;
(b) If sent by post, on the 2nd Business Day (at the address to which it is posted) after posting; or
(c) If sent by facsimile before 4:00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt PROVIDED HOWEVER that a facsimile is not deemed given or received unless at the conclusion of the transmission the sender’s facsimile machine indicates that the relevant number of pages comprised in the notices have been sent.
In the event of any inconsistency between this Contract and any other document, representation or practice, then the provisions hereof will prevail to the extent of such inconsistency.
If any term covenant or condition herein or any part thereof or expression therein or the application thereof to any person or circumstance shall be or become invalid or unenforceable the remaining terms covenants and conditions shall not be affected thereby.
This Contract shall be governed by the law of the State of Queensland and any proceedings in respect of any cause of action arising hereunder may be instituted heard and determined at a court of competent jurisdiction in Queensland selected by ELS and such court shall possess territorial jurisdiction to hear and determine any such proceedings.
26.0 ENTIRE AGREEMENT
This Contract contains the entire agreement between the parties and both parties agree that there are no other terms, representations or understandings except those set out in this Contract.
27.0 PRIVACY ACT 1988 (CTH)
The personal information provided by the Client will be held by ELS. ELS may use the personal information provided by the Client for the purposes of completing the Works and for direct marketing of products and other services offered by ELS or an organization it is affiliated with or represents. The Client has the right to request not to receive direct marketing material and the Client consents to ELS collecting and using its personal information as specified above.
28.0 HEAD CONTRACT TERMINATED
If the Head Contract (if applicable) is terminated for any reason then ELS will be relieved of its obligation to perform this Contract, without prejudice to any claim ELS may have against the Client for loss and damage suffered by ELS as a result of the termination of the Head Contract.
In this Contract and in any instrument created pursuant to or in accordance with it, unless the context otherwise requires:
“BCIPA” means the Building and Construction Industry Payments Act 2004;
“Business Day” means any day except:
(a) Saturday or Sunday;
(b) A day that is a public or bank holiday in Queensland; or
(c) 27th to 31st December (inclusive).
“Client” and “You” means the party detailed on the front page of this Contract in the “Client” section.
“Completion Date” means the date for completion of the Works under this Contract.
“Contract” means the contract to carry out the Works between the Client and ELS by the acceptance of the Quotation by the Client.
“Contract Documents” includes all drawings, plans, and specifications and all other information provided by the Client to ELS.
“ELS” means Environmental Logistic Solutions Pty Ltd as the Contractor.
“Defects Liability Period” means the period as set out in the quotation to this Contract (if applicable).
“Expert” appointed by agreement between the parties or failing agreement by ELS.
“Head Contract” means a contract between the Client and its client, which includes the Works as part of the scope of work.
“Notification & Consent on Variation” is a form detailing the variations of this Contract.
“Payment Claim” means a payment claim as defined under the BCIPA.
“Payment Schedule” means a payment schedule as defined under the BCIPA.
“Price” means the price to be paid by the Client to ELS for the performance of the Works in accordance with the terms of this Contract.
“Quotation” means the quotation given by ELS to the Client which is incorporated in this Contract.
“Site” means where the Works are to be carried out.
“Sub-contractor” means and includes servants, employees, agents, contractors and sub-contractors of ELS.
“Variation” means to vary the Works by:
(a) Carrying out additional work;
(b) Omitting any part of the Works; or
(c) Changing the scope of the Works.
“Works” means the work to be carried out under this Contract as detailed in the Quotation including Variations.
THE CONTRACT IS TO BE READ IN CONJUNCTION WITH THE FOLLOWING POINTS
- The Quotation and/or Contract shall be in writing, whilst also ensuring it is completed in full.
- The signature of the Client must be obtained to authorise the Contract.
- All Variations must be submitted in writing.