In this agreement, “everGREEN” is everGREEN Sustainable Industries Pty Ltd (ABN 64 108 668 033) trading as everGREEN Wastewater, its successors and assigns or any person acting on behalf of and with the authority of everGREEN Sustainable Industries Pty Ltd; “the Owner” is the business entity or home owner/s requesting work to be carried out by everGREEN as identified in the Contract provided by everGREEN; “Contract” means the agreement entered into and between the Owner and everGREEN, and must be read in conjunction with these terms and conditions; “Site” means the address where everGREEN’s work is to be carried out; “Work” and/or “Project” mean the job/s to be carried out by everGREEN; “System/s” mean the system for the treatment of effluent and recycled water-work carried out by everGREEN pursuant to this contract; “Goods” mean pumps, pipes, concrete tanks, building products and materials as more particularly described in everGREEN’s quote and/or Contract; and “Components” mean other building hardware.
2.1 everGREEN’s Quote
everGREEN shall give the Owner a quote specifying the Work and Goods required in order to fulfil the Owner’s requirements and an estimate of everGREEN’s charge for such Work and Goods.
2.2 State and Local Authority Requirement
State and Local Authorities require that all domestic waste treatment systems be maintained during their lifetime by everGREEN or a suitably qualified maintenance contractor. It is a condition of everGREEN’s quote that the Owner enters into a maintenance agreement covering a period of twelve (12) months from the commissioning date of the System.
2.3 Acceptance by the Owner
Where everGREEN has given the Owner a quote:
1. quotes are valid for thirty (30) days only, unless an extension has been authorised by everGREEN;
2. everGREEN need not commence the Project until the quote has been accepted by the Owner;
3. the Owner shall accept the quote by instructing (in writing) everGREEN to commence the Work by signing and returning a copy of the quote accompanied by a purchase order number if applicable;
4. the quoted price is based on Site information supplied by the Owner. Should Site conditions on start date differ from those outlined previously by the Owner then additional costs may be incurred by the Owner;
5. the quoted price is based on completion of the Project in one continuous period unless otherwise agree in writing;
6. all quotes are for loose landfill only unless expressly stated in the quote. The Owner acknowledges that some subsidence may occur around installation even after backfill, due to variations in Site conditions. The Owner is responsible for the top up of any depressions. Subsidence and/or ground movement is an event beyond the control of everGREEN and everGREEN does not accept responsibility for any damage arising from this occurring; and quotes are based on the assumption that all Work will be carried out during normal working hours, being 8am to 4.30pm Monday to Friday. Work performed outside normal business hours will incur a surcharge.
2.4 everGREEN May Revise Quote
everGREEN may amend the quote after a period of thirty (30) days from the date of the quote, in the absence of signed acceptance by the Owner to take into account any rise or fall in the cost of performing the Work.
2.5 Basis of Quote
Unless otherwise specified in writing the Household Sewage Treatment Plant includes the standard submersible pump model and size. Should it become evident once on the job that a larger than standard pump is required, then everGREEN shall consult with the Owner regarding the correct pump for the Project.
2.6.1 All requests by the Owner for variations must be made direct to everGREEN‟s office during normal business hours.
2.6.2 Where there are variations to the original quote:
a) the Owner shall indemnify everGREEN from any additional cost incurred by everGREEN, should the Owner increase the scope of the Work and/or Goods to be provided; and
b) variations within a period subject to a progress payment shall be payable at that time and no later.
2.6.3 If a response to a variation request from everGREEN has not been received within two (2) business days, everGREEN will carry out the Work described as part of its Scope of Work. Variations may result in additional charges to the original quote value.
3. LEGAL OWNER OF THE PROPERTY
3.1 The Owner warrants they are the sole owner of the property where the Work is to be carried out. In the event the Owner does not have the legal and beneficial right over the Property then written approval must be sought from the legal and/or beneficial owner for the installation of the System.
3.2 The Owner agrees to advise everGREEN should the property be sold. The maintenance agreement is not transferable on any sale of the property any residual portion remaining will pass to the new Owner.
4. OWNER’S RESPONSIBILITIES
4.1 The Owner shall clear the Site in accordance with everGREEN’s “Safe Site” letter before any Work starts at the Site, so machinery associated with the installation may enter the Site and complete such Work unhindered and in accordance with Workplace Health and Safety requirements.
4.2 The Owner shall first obtain permission from everGREEN before entering the Work Site during the performance of everGREEN’s Work so everGREEN may comply with Workplace Health and Safety requirements. Should this protocol not be followed, the Owner will indemnify everGREEN from personal injury, losses or expenses incurred.
4.3 The Owner acknowledges everGREEN can rely on the suitability and the accuracy of documents if so provided by the Owner to everGREEN for specification and guidance on the Project.
5. SITE ACCESS
5.1 The Owner shall ensure that everGREEN has clear and uninterrupted access to the Site until the Work has been completed and everGREEN has been paid in full.
5.2 The Owner will indemnify everGREEN from additional costs or penalties if the completion of the Work is delayed due to interrupted Site access.
6. POWER AND WATER
The Owner shall provide power and water services at the Site to assist everGREEN in carrying out the Work. The Owner shall indemnify everGREEN for any additional costs, expenses or losses should these services not be made available and everGREEN is required to provide a vehicle equipped with an Inverter or Power Pack.
7. DO AND CHARGE WORK
Rates for “Do and Charge‟ Work are available on request to everGREEN’s office during normal trading hours. everGREEN reserves the right to change the rate, should everGREEN experience an unforeseen problem requiring the hire of special equipment to complete the Work.
Should the Owner fail to fulfil its obligations under this agreement, then everGREEN reserves the right to terminate the agreement immediately and claim any costs, losses or expenses incurred to date.
9. PAYMENT TERMS
9.1 Time for Payment
everGREEN’s payment terms are strictly full payment prior to or on the dte of completion/date of invoice (Unless otherwise agreed in writing).
everGREEN may charge interest at the rate of two percent (2%) above the commercial lending rate of the Australian and New Zealand Bank (ANZ) calculated on a daily basis on amounts not paid within the time specified in everGREEN’s quote and/or tax invoice.
9.3 The Owner agrees that it will not delay any payments owed by the Owner to everGREEN should any segment of work to be supplied by a tradesman introduced by the Owner not be completed for whatever reason.
9.4 Credit Card Charges
Visa and MasterCard are accepted and may incur a two percent (2%) surcharge.
The Owner must pay to everGREEN any costs, expenses or losses incurred by everGREEN as a result of the Owner’s failure to pay to everGREEN all sums outstanding as owed by the Owner to everGREEN including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
The Owner shall reimburse everGREEN for any costs, expenses or losses incurred by everGREEN should the Owner cancel an accepted quote. The time for payment for such cancellation shall be seven (7) days from everGREEN’‘s tax invoice.
The risk in the Goods shall pass to the Owner upon installation of the Goods.
11. RETENTION OF TITLE
Notwithstanding the installation of the Goods, title in any particular Goods shall remain with everGREEN until the Owner has paid and discharged any and all monies owing pursuant to any invoice issued by everGREEN for the Goods, including all applicable GST and other taxes, levies and duties. Where the Goods have been on sold by the Owner, the Owner will be taken to hold the proceeds of sale of such Goods upon trust for everGREEN and to account to everGREEN for these proceeds.
Any payment made by or on behalf of the Owner which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge everGREEN’s title in the Goods nor the Owner’s indebtedness to everGREEN and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Owner acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices and progress payments for the Goods are made pursuant to clause 11.1 and until that time:
1. the Owner is not entitled to sell the Goods but only in the ordinary course of business;
2. the Owner must not encumber or otherwise charge the Goods; and
3. the Owner shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following installation of the Goods.
The Owner hereby irrevocably grants to everGREEN the right, at its sole discretion, to remove or repossess any unfixed Goods from the Owner and sell or dispose of them, and everGREEN shall not be liable to the Owner or any person claiming through the Owner and everGREEN shall be entitled to retain the proceeds of any Goods sold and apply same towards the Owner’s indebtedness to everGREEN. If the Owner commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then everGREEN may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Owner on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing everGREEN by the Owner.
12. SCHEDULE OF WARRANTIES
12.1 To the extent required by the Australian Consumer Law, everGREEN warrants that:
1. the Work will be carried out in accordance with all relevant laws and legal requirements in an appropriate and skilful way, in accordance with the plans and specifications (where relevant) using products and materials that are good and suitable for the purpose for which they are intended to be used and that, unless otherwise stated in the Contract, those products and materials will be new; and
2. each provisional sum item allowance, if calculated by everGREEN, has been calculated with reasonable skill and care, having regard to all the information reasonably available when this contract is entered into (including information about the nature and location of the Site).
12.2 everGREEN warrants that the Work is, and that Goods, Components and materials supplied are, free of defects at the time of completion of installation.
12.3 Subject to law, everGREEN does not have to fix:
1. any problem caused by misuse, abuse, wear and tear or normal shrinkage or movement;
2. work done by anyone other than everGREEN; or
3. any defects in Goods supplied by the Owner.
The Owner shall inspect the Goods on installation and shall within forty eight (48) hours notify everGREEN in writing of any alleged defects. The Owner shall afford everGREEN an opportunity to inspect the Goods within a reasonable time following installation if the Owner believes the Goods are defective in any way. If the Owner shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any damage.
14. WARRANTY ON GOODS
14.1 Warranty details for Goods installed by everGREEN are available on application to everGREEN’s office during normal business hours 8am–4.30pm weekdays.
14.2 everGREEN reserves the right to charge for any labour costs involved in warranty work.
14.3 Warranty on the Goods shall not apply when:
1. Goods or Components have been subjected to wilful or negligent actions of any person;
2. unauthorised work has been carried out on Goods or Components;
3. the Owner has failed to comply with the suggestions and recommendations of everGREEN for the operation of the System or use of the Goods;
4. any System has been required to bear a workload from which it is not certified or is extraordinary for the size of the dwelling on the Site;
5. the Owner has not paid for the installation of the System, the Goods or the current maintenance agreement; or
6. the Goods are subject to force majeure.
15.1 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer Law (ACL), certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Owner in relation to the provision of the Goods or of the Work which cannot be excluded, restricted or modified by the agreement (“Non-excludable Rights”).
15.2 Disclaimer of Liability
1. everGREEN disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Owner, by statute, the common law, equity, supply, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights.
2. To the extent permitted by law, the liability of everGREEN for a breach of a Non-Excludable Right is limited, at everGREEN’s option, to the supplying of the Goods and/or any Work again or payment of the cost of having the Goods and/or Work supplied again.
15.3 Indirect Losses
1. Notwithstanding any other provision of these terms and conditions, everGREEN is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Owner for:
2. any increased costs or expenses;
3. any loss of profit, revenue, business, contracts or anticipated savings;
4. any loss or expense resulting from a claim by a third party; or
5. any special, indirect or consequential loss or damage of any nature whatsoever caused by any delays in completing the Work.
15.4 Force Majeure
everGREEN will have no liability to the Owner in relation to any loss, damage or expense caused by everGREEN’s failure to complete the Work as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of everGREEN’s normal Contractors to supply necessary Goods or any other matter beyond everGREEN’s control.
15.5 Contractor’s Indemnity
15.5.1 The Owner shall sign off that the Work has been completed at the stages agreed, in accordance with the Contract. After the sign off has been received, the Owner shall indemnify everGREEN from any costs or expenses associated with remedial work to damaged Goods or components.
15.5.2 Any agreed Owner supplied scope of work is to be completed at a time/s agreed by everGREEN, to ensure everGREEN has uninterrupted flow of work.
15.5.3 If the Owner does not adhere to clause 15.5.2 any additional work necessary to provide, supply or install the Goods is a variation and clause 2.6 applies. If a price is not agreed the Owner will be charged everGREEN’s actual cost plus an additional twenty percent (20%) and everGREEN’s current office administration fee for the extra work undertaken.
16.1 everGREEN may collect, retain, record, use and disclose consumer information about the Owner’s credit worthiness, credit standing or credit history in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by everGREEN, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
16.2 everGREEN may give information about the Owner to a credit reporting agency for the purposes of obtaining consumer credit reports and/or lodging consumer defaults on the Owner’s credit file. This information may be given before, during or after the provision of credit to the Owner and will be in accordance with the Privacy Act 1988 and subsequent amendments.
17. DISPUTE RESOLUTION
Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 (Qld) or the Subcontractors’ Charges Act, either party may refer any dispute under, or arising out of, this contract to the Institute of Arbitrators & Mediators Australia, for resolution under the Rules of the Construction Industry Dispute Resolution Scheme. Each case will first be referred to a Conciliator appointed by the Institute unless each party wishes to proceed directly to arbitration. If the conciliation is not satisfactorily concluded within thirty (30) days or if the parties want to proceed directly to arbitration, the Institute will appoint an Arbitrator who will make a final and binding award.
18. SECURITY AND CHARGE
If deemed to be appropriate, the Owner hereby charges all property, both equitable and legal, present or future of the Owner in respect of any monies that may be owing by the Owner to everGREEN under the terms and conditions or otherwise and hereby authorises everGREEN or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Owner at any time.
19. GENERAL MATTERS
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
19.2 Governing Law and Jurisdiction
These terms and conditions are governed by the laws of the State of Queensland and all disputes arising between the Owner and everGREEN will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.
The Owner’s or representatives signature confirms the Owner’s acceptance of these terms and conditions