TERMS & CONDITIONS

1) General 

1.1. Unless otherwise expressly agreed in writing ESS Engineering Services & Supplies Pty Ltd ABN 34 001 931 746 (ESS), these Conditions apply to any quotation or proposal given by ESS (Quotation) and to any agreement for the supply of Goods and/or the performance of Work by ESS. 

1.2 It is expressly acknowledged and agreed that any order issued by the Customer consequent upon or with reference to the Quotation will be deemed to be an acceptance to purchase upon the terms stated on the Quotation and these Conditions. The Quotation (including any document referred to in them) and these Conditions constitute the entire agreement between ESS and the Customer, and any conditions contained in the Customer’s order will not apply notwithstanding a statement to the contrary in the Customer’s order.

 

2) QUOTATION 

2.1 Subject to clause 2.2, a Quotation by ESS remains open for 28 days from the date stated on it or if there is no such date from the date it is issued to the Customer and will lapse if the Customer fails to make an order in writing within that period. 

2.2 ESS may immediately withdraw a Quotation, prior to the expiration of 28 days or terminate this Contract without notice if a Customer does not in ESS’s opinion obtain a satisfactory credit assessment. 

2.3 The Contract is conditional upon the Customer having accepted the Quotation within the minimum number of days, equivalent to the lead time specified in the Quotation, before the Estimated Start Date. 

3) VARIATIONS 

3.1 ESS may, in its absolute discretion, perform a Variation if it receives an instruction from an employee or agent of the Customer to perform the Variation for the Customer. 

3.2 The price payable for a Variation performed by ESS is to be determined by agreement between ESS and the Customer within two business days after the instruction under clause 3.1 is received by ESS and the agreed price for the Variation will be added to or deducted from the Contract Sum. If agreement cannot be reached the Customer will pay the price determined by ESS acting reasonably and any dispute in relation to the Variation will be dealt with under clause 10. 

3.3 Where a Variation relates to Goods that have been ordered or are bespoke ESS may refuse the variation in its absolute discretion. 

3.4 Where the Contract Sum is not quoted as being a “fixed price”, ESS may at its option vary the Contract Sum at any time to take account of any variation in labour or material costs and the Customer will pay the varied Contract Sum.  The Customer is not entitled to vary the Contract Sum other than in accordance with this Contract. 

4) PAYMENT 

4.1 The Customer will pay to ESS the Contract Sum in accordance with clause 4 and the terms of the Customer’s credit account with ESS (if any). 

4.2 Any tax, including a goods and services tax or similar tax or other statutory charge which is imposed on or payable, at the election of any person, in relation to any part of or all of the Works or in respect of the supply of anything including Goods under or pursuant to this Contract (excluding income and capital gains tax) will, to the extent it is not included in the Contract Sum or any other payment due under this agreement, be added to the Contract Sum or such other payment. 

4.3 Unless agreed otherwise in writing Customers must make payment in full for all Goods and / or Works no later than 14 days following date of an invoice. 

4.4 All payments will be made in full and no amount may be withheld by the Customer by way of security, set-off, deduction or counterclaim. 

5) COMPLETION 

5.1 The supply of Works are deemed to be complete when the Works are, in the reasonable opinion of ESS, performed and completed in accordance with the Contract except for minor defects which would not affect the performance or the operation of the Works. 

5.2 The supply of Goods are deemed to be complete when the Goods are, in the reasonable opinion of ESS, delivered in accordance with the Contract. 

5.3 The times or dates quoted for commencement, installation and completion of the Works or supply of Goods will be estimated as accurately as possible but is not guaranteed nor is time of the essence. ESS is not liable for loss, including consequential loss, loss of profits and liquidated damages which may be incurred by the Customer as a result of ESS failing to satisfy any of these dates. 

5.4 If the supply of the Goods or estimated completion of the Works is delayed by circumstances or events beyond the control of ESS including, but not limited to, delays by ESS’ suppliers or subcontractors, delays directly or indirectly caused by the Customer, delay in giving ESS access to the Site in a condition that complies with clause 6.1 of these Conditions or industrial disputes, and irrespective of any other concurrent cause of delay for which ESS may be responsible: 

1. the Estimated Completion Date will automatically be extended by a reasonable period as determined by ESS; or 
2. ESS may terminate the Contract without any liability for breach of the Contract and ESS will be entitled to full payment for all Works completed up to the date of termination. 

5.5 If the Customer causes ESS any delay, the Customer will indemnify ESS for the liquidated damages amount specified in the quotation, and if no such amount is specified then for all expenses incurred and losses suffered including consequential loss and loss of profit by ESS as a consequence of any delay caused or contributed to by the Customer. 

6) DELIVERY 

6.1 ESS shall deliver Goods to the location listed in the Quotation.  If place of delivery is listed ESS will deliver the Goods at its premises where the Goods may be collected by the Customer. Unless expressly included the Contract Sum excludes all freight costs or charges which will be the responsibility of the Customer. 

6.2 If the Customer does not take delivery of the Goods, ESS shall be entitled to put the Goods into storage at the Customer’s expense and ESS shall be deemed to have delivered such Goods to the Client on placing them into such storage. 

7) WORK ON SITE 

7.1 The Customer will ensure that, at no cost to ESS: 

1. the site is clear, free of water, clean, safe, has uninterrupted direct access for employees and sub-contractors of ESS, its material and plant and equipment and sufficient space for scaffolding necessary for the performance of the Contract, and suitable vehicle off-loading is possible within five metres of the Site; 
2. ensure adequate facilities and assistance (as are reasonably required by ESS) are provided to enable ESS to efficiently, comfortably and safely perform the Works; 
3. prior to the commencement of the Works that all necessary licences, consents and approvals including local council permits and engineering certifications required for the performance of the Works have been obtained; and 
4. the structures to which ESS is to install the Works comply with any relevant laws or standards and ESS specifications set out or attached to the Quotation. 

7.2 ESS will not be responsible for the removal of broken or damaged materials or any debris on the Site remaining from the Works. 

8) DEFAULT BY CUSTOMER 

8.1 If the Customer defaults in the performance of any provision of the Contract or any other contract it has with ESS or if it commits an Act of Insolvency then ESS may, at its option and without prejudice to any other rights it may have under the Contract or at law: 

1. suspend or cancel any existing credit facilities available to the Customer; 
2. suspend or cancel the performance of any part of or all of the Works or supply of Goods then outstanding including any other works or goods outstanding under any other order; 
3. terminate the Contract; and 
4. set-off amounts owed to ESS by the Customer under the Contract or as a result of any losses or damages or under any other account against any moneys owing to the Customer by ESS. 

9) WARRANTY AND LIABILITY 

9.1 ESS warrants to the Customer that: 

1. the Works will be in accordance with the Contract 
2. the Works will be performed with the degree of professional skill, care and diligence expected of a competent professional supplier experienced in carrying out the same services or services similar to the Works; 
3. the Goods will be free from defects in workmanship or quality for the defect liability period; 
4. the Works and Goods comply with all applicable laws. 

9.2 Unless agreed otherwise in writing the defect liability period is 12 months from the date of completion of the Works or supply of the Goods. 

9.3 Other than the warranty above all other warranties, liabilities, conditions and obligations are excluded to the extent permitted by law. 

9.4 ESS will not be liable for any shortage in delivery or product damaged prior to delivery unless ESS is notified within two days after the Goods are delivered to site. 

10) INSURANCE, RISK AND PROPERTY 

10.1 The Works are not to be insured by ESS unless otherwise agreed in writing by ESS. 

10.2 The risk of damage to or loss or deterioration of any part of or all of the Works will pass to the Customer on the delivery of any Goods including any goods comprised in the Works to the Site or on the expiry of five days from the date of notification by ESS to the Customer that ESS is ready to commence performance of the Works whichever is the earliest. 

10.3 Notwithstanding that risk in part of the Goods or Works may pass to the Customer, property in and title to any part of the Works and the Goods will not pass to the Customer until all of the Contract Sum and all other money payable by the Customer to ESS has been paid in full and until then: 

1. the Customer will hold the Goods supplied under the Contract as bailee of ESS and a fiduciary relationship will exist between them; and 
2. ESS may enter the Customer’s premises without notice and without consent to inspect the goods and at any time take possession of any and all Goods that are the property of ESS and if necessary dismantle the Works and any existing structure. 

10.4 Notwithstanding any other provision of this Contract, ESS shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to Customer for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or consequential loss. Otherwise, ESS’ maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to Customer is limited to the Contract Sum. 

10.5 ESS may, in its absolute discretion, repair, replace or refund the price of any non-conforming or defective Works or Goods.  These are the sole remedies available to the Customer for the default by ESS of the Contract. 

10.6 ESS shall not be liable in any way for any loss or damage whatsoever suffered by the Customer or any other person, whether direct or consequential, unless the loss is damage to property, personal injury or death caused by the negligent act or omission of ESS. The Customer hereby indemnifies and releases ESS against all other liability to the fullest extent permitted it by law. 

11) DISPUTES 

11.1 If a dispute arises out of or relates to the Contract, a party may not commence any Court or arbitration proceedings (except urgent interlocutory relief) under this clause 10 unless it has in good faith attempted to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques. 

12) GENERAL 

12.1 ESS retains copyright and all other intellectual property rights in Goods and in all material and know how it uses for the performance of the Works. 

12.2 Unless expressly included in the Contract, all descriptive specifications, drawings, dimensions and data appearing in catalogues and other literature supplied by ESS are approximate only and do not form part of the Contract. 

12.3 The Customer warrants the accuracy, completeness and reliability of any documents or other information provided by the Customer to ESS relating to the Works and warrants it has a right to use any drawings or other material it has provided to ESS for the performance of the Works. 

12.4 Any provision or clause of these Conditions which is void or unenforceable may be severed without affecting other provisions or clauses within these Conditions. 

12.5 ESS may sub-contract its obligations under the Contract. The Customer acknowledges that no sub-contractor has authority to agree to any Variation of the Works on behalf of ESS. 

12.6 ESS reserves the right to change the construction or design of any goods to be supplied under the Contract, if in its judgment it does not significantly affect the performance characteristics of those goods. 

12.7 The Customer will not transfer or assign this Contract without ESS’ written consent. 

12.8 Except as may be otherwise specified by ESS, the Contract will be governed by the laws of New South Wales and the Customer submits to the non-exclusive jurisdiction of its courts. 

13) INTERPRETATION 

Any reference in these Conditions to a word or expression used in the attached quotation will have the same meaning as in the Quotation. In these Conditions, unless the context requires otherwise: 

“Act of Insolvency” means the Customer is made bankrupt or a bankruptcy petition is presented against it or an administrator, liquidator, provisional liquidator or a receiver is appointed in respect of the Customer or an application is made for winding up or a winding up order is made in respect of the Customer or a similar action or application is made; 

“Contract” means the agreement constituted by the Quotation including any annexures or attachment to the Quotation and these terms and conditions; 

“Contract Sum” means the total price specified in the Contract as may be adjusted from time to time in accordance with this Contract including, without limitation, the value of Variations performed by ESS; 

“Goods” means the goods to be supplied by ESS in accordance with the Contract; 

“Variation” means an increase, decrease, omission, substitution or other change to the scope of the Works including, without limitation, those arising from: 

1. particular site conditions, including ground conditions, ground levels or site allowances, which prevail at the Site and which were not made known to ESS by the Customer at the date ESS gave its quotation or the Customer made its order (whichever is the earlier); 
2. the final dimensions or specifications relating to any part of the Works varying from those specified in ESS’ quotation as a consequence of the Customer providing incomplete, inadequate or incorrect specifications or information; 
3. any requirement that ESS perform the Works outside normal working hours; and 
4. any enactment, repeal or amendment of applicable laws and regulations; 
5. 

“Works” means the works to be executed by ESS in accordance with the Contract including, but not limited to the supply of goods, materials or services including any Variations.