These are the Terms and Condition on which Yenchie Refrigeration and Air Conditioning Solutions Pty Ltd ACN 668 233 592 trading as Yenchie Air Conditioning Solutions ABN 84 668 233 592 (QBCC: 15387025) will carry out work for you. By accepting our quote, you are deemed to have accepted these Terms and Conditions.
For the purposes of these Terms and Conditions:
(a) “Additional Fees” means the fees applicable to Work not foreseen or not requested by the Client before commencement of the Work including:
· Do and Charge Work;
· After Hours work as specified in clause 9;
· Latent conditions or obstacles requiring the hire of special equipment to complete the Work.
(b) “Aged Equipment” means any unit, filters, louvers, grilles, drainpipes or other equipment that has surpassed its expected lifespan or in a state of advanced wear and tear.
(c) “Cancellation Fees” means the fees set out in clauses 7.3 and 7.9.
(d) “Completion Date” means the completion date set out in the Contract (if any).
(e) “Contract” means the Contract for Building Works attached to these Terms and Conditions, required only where the value of the Work is over $3,300.00.
(f) “Contractor” means Yenchie Refrigeration and Air Conditioning Solutions Pty Ltd ACN 668 233 592, its successors and assigns or any person acting on behalf of and with the authority of the Contractor;
(g) “Client” is the Customer named on the credit application with the Contractor or where no account exists then on the quote or tender provided by the Contractor to the Client;
(h) “Credit Card fees” means the credit card surcharge fees which are incurred by the Contractor’s financial institution when processing a credit card payment.
(i) “Do and Charge Work” means Work performed under direction of the Client without a formal quotation or variation.
(j) “Fees” means the fees payable by the Client as set out in the Contract (if applicable) or any quotation or tender provided by the Contractor and accepted by the Client in accordance with clause 2.3, as varied in accordance with clause 3 and includes any Additional Fees, Cancellation Fees and Credit Card Fees.
(k) “Goods” means electrical equipment and related components supplied by the Contractor to the Client and as described on the Contractor’s quotes, tax invoices and other paperwork.
(l) “PPSA” means the Personal Property and Securities Act 2009 (Cth).
(m) “QBCC Act” means the Queensland Building and Construction Commission Act 1991.
(n) “Site” means the place where the Contractor’s work will be carried out;
(o) “Start Date” means the date set out in the Contract or as otherwise agreed by the parties where no Contract is required.
(p) “Work” means the performance of air conditioning refrigeration installation and mechanical services as more particularly described in the Contract, quote, scope of works or tender provided by the Contractor to the Client and as varied in accordance with clause 5.
2.1 If the parties are required to enter into a Contract, the Contractor must commence the Work on or before the Start Date and complete the Work on or before the Completion Date.
3.1 The Client shall receive a quote, scope of works or tender specifying the Work to be undertaken by the Contractor in order to fulfill the Client’s instructions.
3.2 Prices shall be valid for thirty (30) days unless otherwise agreed in writing.
3.3 The Client shall accept the quote or tender by signing and returning a copy to the Contractor, emailing the Contractor or continuing to instruct the Contractor to carry out Work.
3.4 The Client acknowledges that where the Contractor’s costs in connection with any quote or tender increase as a result of the introduction of new, or changes to existing government taxes or charges or prime cost items or provisional sums, the Client will be liable for such increases and any quote or tender is provided subject to such variations.
4.1 Fees are payable within 7 days of receipt of the Contractor’s Tax Invoice following completion of the Work.
4.2 The Contractor reserves the right to cease Work until any overdue Fees are paid.
4.3 Where the Client elects to pay the Fees by credit card, the Client authorises the Contractor to charge the provided credit card for Credit Card Fees.
4.4 Where the elects to use Zip Pay or similar buy now pay later company for payment of the Fees, the Client agrees to their terms and conditions and compliance. The Contractor is not responsible for any terms, conditions fees or policies, disputes or enquiries associated with Zip Pay or any other buy now pay later company. By proceeding with payment through Zip Pay or any other similar buy now pay later company, the Client acknowledges and accepts this disclaimer.
4.5 Interest on any overdue Fees will accrue daily from the date when payment becomes due until the date of payment at a rate of 6% above the cash rate published by the Reserve Bank of Australia per calendar month and such interest will compound monthly at such rate after as well as before any judgement.
5.1 Variations to the Work or the Contract (where applicable) may be effected by:
(a) the party requiring the variation gives the other party a notice describing the variation; and
(b) the Contractor provides a written estimate of the value of the variation, the time required to implement it and when any increase in the Fee is due; and
(c) the variation notice is signed by both parties and provided to the Client within 5 business days of signing and before the variation work commences.
5.2 If there is no Contract required for the Works, the parties need not comply with clause 5.1(c).
5.3 If the Client requests the Contractor to carry out Do and Charge Work and it is not possible to comply with clause 5.1, the Contractor will be at liberty to charge the Client for such work and will use best endeavours to comply with clause 5.1 as soon as reasonably practicable.
5.4 The Contractor may request a variation to the Work or the Fees where Site conditions differ materially from those which should reasonably have been anticipated by the Contractor if it had examined all information made available to it by the Client and from making reasonable enquiries and inspected the Site.
6. EXTENSION OF TIME
6.1 Where the parties are required to enter into a Contract, the Contractor is entitled to extend the Completion Date if:
(a) a delay is incurred as a result of actions or inaction by the Owner;
(b) a variation under clause 5 requires it;
(c) an event of Force Majeure (as defined in clause 7.5) occurs;
(d) a weather event (as set out in clause 12) occurs;
(e) the Client fails to obtain any approvals under clause 8.2 by the Start Date; and
(f) the Contractor provides the Client with a claim in writing within 10 business days of the Contractor becoming aware of the delay; and
(g) the Client approves and signs the claim.
6.2 If there is no Contract required for the Works, the parties need not comply with clauses 6.1(f) and (g).
7.1 Clause 7.2 does not apply to Work valued at less than $3,300.00 or where the Client received (or advised the Contractor that it received) legal advice before entering into the Contract.
7.2 If the parties have entered into a Contract (or are required to), the Client may terminate by providing the Contractor with written notice within 5 business days from receiving the signed Contract and the QBCC Consumer Building Guide (where the Work is valued at $20,000 or more). The Client’s notice must comply with section 35 of Schedule 1B of the QBCC Act.
7.3 If the Client terminates in accordance with clause 7.2, the Client must pay to the Contractor an amount equal to all out-of-pocket expenses incurred by the Contractor, plus an additional $100 if the Contractor has complied with section 38 of Schedule 1B of the QBCC Act.
7.4 Either party may terminate by written notice to the other if, without fault, any consents or approvals necessary for the commencement of the Work have not been received by the Start Date or a variation under clause 5 is not agreed.
7.5 Either party may terminate if the other party is in breach of these Terms and Conditions and fails to remedy the breach within 10 business days of receiving written notice of the breach, or immediately, if the breach is not capable of being remedied.
7.6 Without prejudice to the Contractor’s other remedies, the Contractor will be entitled to cancel all or any part of the Works which remain unperformed:
(a) Any Fees become overdue or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) The Customer becomes bankrupt or a receiver or liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
7.7 The Client may terminate if the Contractor becomes bankrupt or a receiver or liquidator (provisional or otherwise) or similar person is appointed in respect of the Contractor or any asset of the Contractor.
7.8 The parties may mutually agree to terminate the Works in writing.
7.9 Where termination is other than in accordance with clause 7.2, all amounts owing to the Contractor will, whether or not due for payment, become immediately payable.
8. CLIENT RESPONSIBILITIES
8.1 The Client shall provide clear and exclusive Site access for the Contractor to complete any necessary Work and the Customer indemnifies the Contractor where any damage to property or person occurs as a result of the Site not being clear or safe.
8.2 The Client must obtain any building or other approvals required for the Work.
8.3 The Client must inform the Contractor prior to undertaking the Work of any potential risks that may be encountered such as asbestos, snakes etc.
8.4 The Client warrants that it holds appropriate house and contents insurance for the Site.
9. CONTRACTOR’S TRADING HOURS
The Contractor’s normal trading hours are 8am - 5pm, Monday to Friday. Work performed (at the Client’s request) outside those hours or on a public holiday will be at the Contractor’s discretion and will be subject to a surcharge (rates on application).
10. SERVICES BELOW THE GROUND
Before any Work is undertaken and where appropriate, the Client shall clearly mark the exact location and identify all services above and below ground at the Site, including, but not limited to drains, pipes, sewers, mains and telephone and data cables, to enable the Contractor to prevent damage to all such services. These plans can be requested from the Dial Before You Dig website at www.1100.com.au or phone 1100. Should the Client fail to provide the Contractor with the appropriate plans for the Site as specified, the Client shall indemnify the Contractor from any claim for costs, expenses or losses incurred should services be damaged.
The Client shall inspect all Goods and the Work on installation and shall as soon as possible following completion of the Work notify the Contractor in writing of any alleged shortage in quantity, damage, or failure to comply with any agreed scope of works (“Defects”). The Client shall afford the Contractor an opportunity to inspect the Goods and Work if the Client believes the Goods or Work are defective in any way. If the Client does notify the Contractor of any Defects within 30 days of completion of the Work (or 6 months where the parties have entered into a Contract), the Goods and Work will be presumed to be free from Defects and the Client will not be permitted to make any claim against the Contractor in relation thereto. The Contractor shall make good such Defects within 28 days of receiving a notification from the Client.
12. WEATHER DELAYS
In the event of adverse weather conditions which require the Work to be suspended, the Contractor will reschedule the Work and use its reasonable endeavours to complete the Work as soon as practically possible. The Contractor is not liable for any delays in completion of the Work due to adverse weather conditions.
The Client must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Client’s failure to comply with these Terms and Conditions (including debt collection and legal costs on a full indemnity basis).
14. RETENTION OF TITLE
14.1 Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Contractor regardless of whether the Goods are on-sold by the Client, until all Fees are paid. Where Goods have been on-sold by the Client, the Client will be taken to hold the proceeds of sale of such Goods upon trust for the Contractor and to account to the Contractor for those proceeds. Any payment made by or on behalf of the Client which is later avoided shall be deemed not to discharge the Contractor’s title in the Goods nor the Client’s indebtedness to the Contractor 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.
14.2 The Client acknowledges that it will be in possession of any Goods solely as bailee until all Fees are paid and until that time:
(a) the Client must not encumber or otherwise charge the Goods; and
(b) the Client shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Client.
14.3 The Client hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them, where any Fees are not paid within the payment terms set out in clause 4 and the Contractor shall not be liable to the Client or any person claiming through the Client and the Contractor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Client’s indebtedness to the Contractor.
14.4 The Client hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them, where any Fees are not paid within the payment terms set out in clause 4 or the Contractor terminates under clause 7.6(b) and the Contractor shall not be liable to the Client or any person claiming through the Client and the Contractor shall be entitled to retain the proceeds of any Goods sold and apply same towards the Client’s indebtedness to the Contractor.
15.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
15.2 The Client acknowledges and agrees:
(a) that these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds) previously supplied by the Contractor to the Client and to be supplied in the future by the Contractor to the Client;
(b) that the Security Interest created by these Terms & Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Contractor to the Client) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Contractor has signed a release;
(c) to waive its rights in relation to the sections listed in sub-section 115(1) of the PPSA (or as otherwise amended), which will not apply (to the extent, if any, mentioned) to the Security Agreement created by these Terms & Conditions.
15.3 The Client undertakes to:
(a) keep all Goods free of any charge, lien or Security Interest except as created under these Terms & Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Contractor under these Terms & Conditions or the PPSA;
(b) sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Contractor may require to register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register, register any other document required to be registered by the PPSA, or correct a defect in a statement referred to in clause 15.2(b);
(c) indemnify, and upon demand reimburse, the Contractor for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby, and enforcing or attempting to enforce the Security any Interest created by these Terms & Conditions.
(d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of the Contractor; and immediately advise the Contractor of any material change in its business details (including, but not limited to, its trading name, address, facsimile number) or business practices.
16.1 Any warranty as to the Goods on the part of the Client shall be limited to the Warranty provided by the manufacturer to the Client on or before installation of the Goods. Any labour involved with warranty Work may incur charges as determined by the Contractor.
16.2 The Contractor warrants that the Work will be carried out in accordance with all relevant laws in an appropriate and skilful way, in accordance with plans and specifications (where relevant) using materials that are good and suitable for the purpose for which they are intended to be used and will be new, unless otherwise agreed. The Contractor is not liable where the Work or the Goods are damaged as a result of the Customer failing to maintain the Work or the Goods as directed by the Contractor, as set out in any manufacturer recommendations, or as a reasonable person might do.
16.3 Where the parties have entered into a Contract, the Contractor warrants that the Work will be complete by the Completion Date.
16.4 The Contractor reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform.
16.5 In respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Client’s claim.
17.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the Work which cannot be excluded, restricted or modified by the contract (“Non-excludable Rights”).
17.2 Disclaimer of Liability
The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, 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. To the extent permitted by law, the liability of the Contractor for a breach of a Non-Excludable Right is limited, at the Contractor’s option, to the supplying of the Work again or payment of the cost of having the Work supplied again.
17.3 Disclaimer relating to Aged Equipment
The Contractor will not be liable for any damage that is caused to Aged Equipment during the course of the Work. The Contractor shall take care when dealing with Aged Equipment, however some parts can be brittle, easily cracked or broken when touched. The Client acknowledges and accepts this disclaimer, releasing the Contractor from any liability for damages to Aged Equipment.
17.4 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Contractor 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 Client for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or (d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in completing the Work or to deliver the Goods.
17.5 Force Majeure
The Contractor will have no liability to the Client in relation to any loss, damage or expense caused by the Contractor’s failure to complete the Work or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary Goods or any other matter beyond the Contractor’s control.
18.1 The Client hereby authorises the Contractor to collect, retain, record, use and disclose commercial and/or consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Contractor, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
18.2 The Contractor may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
19. SECURITY AND CHARGE
The Client hereby charge all property, both equitable and legal, present or future of the Client in respect of any monies that may be owing by the Client to the Contractor under the Terms and Conditions or otherwise and hereby authorises the Contractor 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 Client or the Guarantor/s at any time.
20. INTELLECTUAL PROPERTY
20.1 The Client agrees that the Contractor may take and use photos of any of part of the Work for promotional and portfolio purposes.
20.2 The Client authorises the Contractor to place its company logo and case study on its website or promotional collateral for promotional purposes.
20.3 Where the Contractor has designed, drawn or written plans for or associated with the Work, then copyright in those designs drawings, plans and documents will remain vested in the Contractor and will only be used by the Client with the consent of the Contractor (which it may grant at its discretion).
21. 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.
21.2 Governing Law and jurisdiction
These Terms and Conditions are governed by the laws of the State of Queensland and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland.
The Contractor may sub-contract its obligations under these Terms and Conditions.
Any notice provided under these Terms and Conditions must be in writing.
21.5 Dispute Resolution
The parties agree to attempt in good faith to resolve any dispute regarding these Terms and Conditions.
If the dispute or difference is not resolved to the satisfaction of the parties within 30 days, either party may refer the matter to QBCC (if the parties have entered into a Contract) or a mediator.
Mediation shall be effected:
(a) by a mediator agreed upon in writing by the parties; or
(b) in the absence of such agreement, by a mediator appointed by the Queensland Law Society.
If mediation is unsuccessful, either party may refer the matter to the Queensland Civil and Administrative Tribunal.