Terms & Conditions
Clyde Anderson Pty Ltd ABN 51 076 521 947 trading as Anderson Energy Efficiency
Terms and Conditions
1. Definitions
Agreement means the terms and conditions contained herein this agreement, the Application Form and the Energy Efficiency Checklist;
Application Form means the credit application form provided by the Supplier;
Authorised Representative means the person nominated on the Application Form and any other person as nominated by the Customer from time to time;
Customer means the applicant named on the Application Form;
Energy Efficiency Checklist means the energy efficient checklist provided by the Supplier from time to time;
Personal Guarantee Deed means the personal guarantee deed annexed to this Agreement;
Fee Proposal means the Supplier’s fee proposal form;
Purchase Price means the costs of the Services as at the date of this Agreement and stated on the Fee Proposal as varied from time to time by the Supplier;
Supplier means Clyde Anderson Pty Ltd ABN 51 076 521 947 trading as Anderson Energy Efficiency; and
Services means any services supplied by the Supplier to the Customer from time to time that relate to an energy efficiency assessment as contemplated by this Agreement, the Fee Proposal and the Energy Efficiency Checklist;
Substantial Change means any variation to the building/property/premises noted on the Energy Efficiency Checklist that may in any way effect the scope of Services to be provided as determined by the Supplier;
Tax Invoice means the Tax Invoice supplied by the Supplier to the Customer.
2. Acceptance of Terms and Conditions
2.1 These terms and conditions and the Fee Proposal are deemed to be accepted by the Customer upon either of the following events occurring:
(a) the Application Form is signed by the Customer or their Authorised Representative ; or
(b) the Customer instructs the Supplier to supply the Services.
2.2 The Customer must complete and return the Energy Efficiency Checklist and Application Form prior to the Supplier providing the Services.
2.3 Upon acceptance pursuant to this clause the Customer must execute and return the Personal Guarantee Deed prior to the Supplier providing the Services, unless the Supplier agrees otherwise.
3. Authority
3.1 The Customer acknowledges that the Supplier or any representative thereof has not made any representation or agreement whereby the Customer has relied upon.
3.2 If any representation or agreements have been made by the Supplier or any representative thereof, the Customer agrees that they have not relied upon them and this Agreement forms the entire agreement between the parties.
4. Price
4.1 The price payable for the Services is the Purchase Price.
4.2 Prices are subject to change from time to time by the Supplier with no notice being required to be given to the Customer.
4.3 Prices are current as at the date that the Application Form is signed by the Customer.
4.4 The Purchase Price contained in the Fee Proposal remains valid for a period of 30 days from the date that it is provided to the Customer.
5. Terms of Payment
5.1 All payments to the Supplier:
(a) must be made by either direct deposit into the Supplier’s nominated bank account or via bank cheque;
(b) must be made within 30 days of the date as noted on the Tax Invoice or as otherwise directed by the Supplier; and
(c) must be made in the manner as stated on the Tax Invoice.
5.2 The Supplier reserves the right at any time to withhold or cancel the supply of Services any time, without notice, if the Customer fails to comply with the terms of this Agreement.
5.3 The Supplier may withhold access to and delivery or performance of any Services until clear payment is received.
6. Delivery of Services and Variation
6.1 The Services that the Supplier is to supply are limited to the building/property/premises as noted on the Energy Efficiency Checklist.
6.2 The Supplier will contact the Customer to arrange for a date for the Services to be provided, which shall be no more than 5 business days from clause 2 being satisfied, unless otherwise agreed.
6.3 The Supplier may refuse to supply Services to the Customer in the event that monies owed to the Supplier by the Customer are outstanding.
6.4 The Services that the Supplier will provide to the Customer are limited to those Services as contained in the Fee Proposal, noting the condition of the building/property/premises as noted on the Energy Efficiency Checklist at the time of the Fee Proposal being given the Customer, and any additional Services or variations thereof that may be required may incur an additional fee which may be no less than $330.00 per hour or part thereof.
6.5 The Customer must notify the Supplier of any Substantial Change and acknowledges that any Substantial Change may affect the scope of Services to be provided and may incur an additional fee.
6.6 The Supplier will attempt, in all possible circumstances, to limit the Supplier’s downtime in the performance of Services.
6.7 The Supplier will, immediately on becoming aware of any actual or potential delay in providing any Services, provide the Customer with notice as to the nature and cause of the delay and provide an amended timeframe for the Services to be supplied.
6.8 The Supplier is not liable to the Customer for any failure to perform the Services, or delay for performing the Services.
6.9 The Customer further agrees to indemnify the Supplier for any additional cost incurred by the Supplier in the event that the Services to be provided fall outside the scope of work to be performed pursuant to the original Fee Proposal and Energy Efficiency Checklist.
7. Warranties and Indemnities
7.1 The Supplier warrants
(a) that all Services conducted meet the relevant jurisdictional requirements of the: National Construction Code; Nationwide House Energy Rating Scheme; Building and Sustainability Index; and Queensland Development Code; and
(b) all required professional accreditations are maintained with the Australian Building Sustainability Association.
7.2 The Customer warrants:
(a) that all information provided to the Supplier is accurate and acknowledges that the Supplier has placed reliance on the information provided and is not required to make any enquires to determine the validity of the information provided;
(b) the Authorised Person has the authority to perform and authorise any action that the Customer may undertake; and
(c) that all times throughout the term of this Agreement the Customer will notify the Supplier if there is a change to the Customers Authorised Person.
7.3 The Customer authorises the Supplier to:
(a) the extent permitted by law, to collect, retain and use any information about the Customer; and
(b) disclose any information obtained by any person for the purposes of delivering the Services.
7.4 The Customer indemnifies the Supplier against:
(a) any penalty or liability incurred by the Supplier for any breach by the Customer of these terms and conditions; and
(b) all actions, claims, demands, losses, damages, costs and expenses which the Supplier may sustain or incur or for which the Supplier may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Supplier and its respective employees or any other authorised person.
7.5 The Supplier is not liable for any defect or damage caused by the Supplier providing the Services.
7.6 The Supplier is not liable to compensate the Customer for any losses incurred for failure or delay if such is due to fire, cyclone, earthquake, flood, tsunami, inclement weather, strike, labour dispute, war, government order, riot, revolution, pandemic, civil commotion or any other cause beyond its reasonable control.
8. Liability
8.1 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 Customer in relation to the provision of the Services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
8.2 The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, 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 Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Services again or payment of the cost of having the Services supplied again.
8.3 The Supplier’s liability for any claim in relation to this Agreement or the supply or performance of the Services (whether under statue, contract, tort, negligence or otherwise) will be limited to the amount of the fee paid by the Customer to the Supplier.
8.4 The Supplier is not be liable to the Customer for any claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any direct or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) of any remote abnormal of unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties, as a result of or in connection with the provision of the supply or performance of the Services.
8.5 The Customer agrees that they waive any claim, future or present, that they may have or may arise against the Supplier that is in any way connected directly or indirectly with the supply of the Services.
8.6 Notwithstanding any other provision of this Agreement, the Supplier 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 Customer 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 Supplier’s failure to complete or delay in supply of the Services.
8.7 The Customer further indemnifies the Supplier from any costs or charges that in anyway either directly or indirectly relate to the supply of the Services and further for any services that the Supplier performs.
9. Default
9.1 If the Customer makes default in any payment or breaches any terms contained herein this Agreement, commits any act of bankruptcy or enters into involuntary liquidation or any scheme of arrangement with its creditors the Supplier may terminate this Agreement.
9.2 In the event of default under this clause, the Supplier may, at its discretion:
(a) elect to apply an interest charge against the Customer’s account at the rate of 1.5% of the outstanding monies per month or part thereof;
(b) charge an administration fee each month, or portion thereof, that an amount owing by the Customer is overdue;
(c) commence proceedings against the Customer or enforce any personal guarantee;
(d) call and act upon any security interest that the Supplier is entitled to enforce;
(e) recover against the Customer all moneys that are owed to the Supplier including incidental costs that are incurred in relation to the Customer’s default;
(f) list the default in payment with the appropriate credit reporting agency; and
(g) perform any other action that the Supplier deems appropriate to enforce this Agreement and recovery monies owed.
10. Termination/Cancellation
10.1 If the Customer wishes to cancel the supply of Services then they must give notice in writing to the Supplier notifying them of termination.
10.2 In the event that the Customer wishes to terminate the agreement between the parties whereby the Supplier is providing Services for a fixed period of time, then the Customer must pay to the Supplier an amount equal to 75% of the remaining monetary obligation owed under the agreement to the Supplier in addition to payment for the Services already performed or part thereof.
10.3 The Supplier may terminate this Agreement at any time if the Customer breaches the terms and conditions contained herein without notice to the Customer.
11. Privacy
11.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.
11.2 The Customer also authorises the Supplier to make enquiries with respect to the Customer’s credit worthiness; to exchange information with other credit providers in respect to previous defaults of the Customer and to notify other credit providers of a default by the Customer.
12. Security
Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
(a) where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of its interest in the said land, realty or any other asset to the Supplier or the Suppliers’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions.;
(b) the Customer acknowledges and agrees that the Supplier (or the Suppliers’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.;
(c) should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify the Supplier from and against all of the Suppliers’ costs and disbursements including legal costs on a solicitor and own client basis;
(d) the Customer agrees to irrevocably nominate constitute and appoint the Supplier or the Suppliers’ nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
13. GST
13.1 All prices contemplated by this Agreement, Fee Proposal and any other document provided by the Supplier are exclusive of and subject to GST.
13.2 A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
13.3 The parties acknowledge that GST is imposed on a supply made under or in connection with this Agreement and that the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable by the Customer to the Supplier at the same time as the consideration to which the additional consideration relates.
13.4 The Supplier will issue a Tax Invoice to the Customer for the supply of the Services at the time of payment of the GST inclusive consideration or at another time agreed by the parties.
13.5 If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
13.6 The Customer must pay any taxes in relation to the receipt of the Services.
14. Intellectual Property
All intellectual property rights and copyright in:
(a) the Services (including but not limited all calculations and documents associated with the Services); and
(b) all designs, drawings, technical information and documents created by the Supplier,
remain the property of the Supplier.
15. General
15.1 Nothing in this Agreement shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricted or modifying any condition, warranty, guarantee, right or remedy implied by the law (including the Competition and Consumer Act 2011) and which by law cannot be excluded, restricted or modified.
15.2 These terms and conditions supersede all terms and conditions previously issued by the Supplier.
15.3 The parties acknowledge that this Agreement is intended as a contract for the supply of Services and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
15.4 This Agreement is personal to the Customer and must not be assigned without the prior written consent of the Supplier. Such consent must be reasonably given by the Supplier and must not be unreasonable withheld.
15.5 A communication required by this Agreement, by a party to another, must be in writing and may be given to them by being:
(a) Delivered personally;
(b) Posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting;
(c) Faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
(d) Sent by email to their email address, when it will be treated as received on that day.
15.6 If any provision, or the application of any provision, of this Agreement is prohibited, invalid, void, illegal or unenforceable in any jurisdiction:
(a) this will not affect the validity and enforceability of the provision or part in other jurisdictions;
(b) the provision or part will only be ineffective to the extent of the prohibition, invalidity, voidness or illegality; and
(c) the provision or part will be severed and will not affect the validity or enforceability of the remaining provisions or parts of this Agreement.
15.7 Any waiver of a right under this Agreement must be in writing and signed by the party granting the waiver and will not operate as a waiver in relation to any subsequent matter.
15.8 Any failure, delay, forbearance or indulgence by a party in an exercise, or partial exercise, of a right arising under this Agreement will not result in a waiver of that right or prejudice or restrict the rights of the party.
15.9 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
15.10 Each party acknowledges that the party has received legal advice or has had the opportunity of obtaining legal advice in relation to this Agreement.
15.11 This Agreement will be governed by the laws of Queensland, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.
15.12 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.