TERMS AND CONDITIONS.
SNOWY MOUNTAINS LEVEL 1 PTY LTD – TERMS & CONDITIONS
1. Definitions
1.1 Unless specified otherwise, words and phrases beginning with a capital letter in this agreement have the following meaning:
(a) “Accreditation” means approval given by the accrediting agency to an ASP to offer and provide connection services to customers who are entitled under section 31 of the Electricity Supply Act (NSW) 1995 to obtain goods and services in a competitive market.
(b) “Additional Terms” means any special terms and conditions included in this Agreement.
(c) “Agreement” means this document, comprising of these terms and conditions, and provided with the Quote.
(d) “ASP” means Accredited Service Provider, a person accredited under the Accreditation Scheme as an ASP/1, an ASP/2 or ASP/3.
(e) “Certified Design” means a design of electricity assets certified by the Supply Authority.
(f) “Claim” means claims, actions, proceedings, demands, liabilities and obligations (whether performed or unperformed), representations, acts, omissions and proceedings made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
(g) “Client” means the Client (or any person acting on behalf of and with the authority of the Client) as described on any Quote, work authorisation or other forms as provided by Snowy Mountains to the Client.
(h) “Confidential Information” means:
(i) the terms of the Quotation, this Agreement and their subject matter;
(ii) any information, statements, contracts, agreements, specifications, drawings, reports, accounts, knowledge, information concerning the affairs of Snowy Mountains; or
(iii) information which by its nature or by the circumstances of its disclosure, is or would reasonably be expected to be regarded as Confidential Information at any time disclosed (whether in writing or orally); but
(iv) does not include information that is in the public domain otherwise then as a result other than by a breach of the Quote or this Agreement by the Client or their agents.
(i) “Contestable Service” includes connection services and or asset relocation services that can be provided by an ASP on a competitive basis
(j) “Deposit” means the deposit amount specified in this Agreement;
(k) “Design Consultation Services” means the services provided by Snowy Mountains to facilitate the location, design and certification of the proposed provision of power to the Client’s Site as follows:
(i) reviewing the location of the proposed power line (underground and/or overhead) services on the Client’s Site, taking photos and consulting with the Client as to their requirements;
(ii) contracting a third party to prepare the design of the power installation based on the agreed Client requirements.
(iii) reviewing the design to be submitted and approved and certified by Supply Authority, liaising with third party and Supply Authority about any amendments required and once acceptable received from Supply Authority certification of the design.
(l) “Distribution Network” means the apparatus, equipment, plant and buildings used to convey and control the conveyance of electricity between generators’ points of connection and customers’ points of connection excluding any customer connection assets.
(m) “Force Majeure” means an act of God, fire, storm, flood, earthquake, explosion, epidemic, war, substance, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lockouts or other industrial disputes or any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected (which in the case of Snowy Mountains includes reasonable control of its sub-contractors) but does not include any act or omission of the other party to this Agreement.
(n) “Goods” means any goods supplied by Snowy Mountains to the Client as part of the provision of the Services and are as described on the invoices, Quote, work authorisation or any other forms as provided by Snowy Mountains to the Client.
(o) “GST” means any goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time, any associated legislation, e.g. any legislation that imposes GST, and any regulations, to the extent they relate to any such legislation.
(p) “Guarantor” means the person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
(q) “Insolvency Event” means:
(i) in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events; or
(ii) in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events; or
(iii) in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control or the occurrence of any event that has a substantially similar effect to any of these events.
(r) “Installation Services” means the Services provided by Snowy Mountains following completion of the Design Consultation Services to install the certified design, including:
(i) ordering the Goods for the assembly and construction of the required electrical installation;
(ii) upon receipt of the Goods arranging assembly and construction for installation;
(iii) installation on Site in consultation with Supply Authority to facilitate the required power outage;
(iv) arranging final inspection by Supply Authority.
(s) “Intellectual Property” means all intellectual property rights, including without limitation:
(i) patents, copyright, registered designs, trademarks and the right to have confidential information kept confidential; and
(ii) any application or right to apply for registration of any of the rights referred to in paragraph (i).
(t) “Level 1 Work” means work is carried out on low and high voltage distribution systems owned by Supply Authorities. This work can be either underground or overhead power line construction and can be new installations , additions , removal or repair to components and associated equipment with all aspects of electrical infrastructure installed within streets, public areas or specifically designated easements.
(u) “Level 2 Work” means where low voltage customers are connected to the network, via overhead or underground service connection, usually from the network found in the street to a property, building or structure. This can range from 100 – 400 amp and include supply and installation of main switchboards and electricity meters.
(v) “PPSA” means the Personal Property Security Act 2009 (Cth) and any regulations made pursuant to it.
(w) “Price” means the total sum which, subject to the provisions of this Agreement, will have become payable to Snowy Mountains by the Client upon the completion of the Services in accordance with the Quote, and any variation thereto.
(x) “Privacy Act” means the Privacy Act 1988 (Cth).
(y) “Project IP” means the Intellectual property in all output produced directly or indirectly from the Services, the subject of this Agreement, including any pre-existing Intellectual Property rights required to complete and commission the Services.
(z) “Quote” means the document as prepared and submitted by Snowy Mountains to the Client for the right to provide the Services pursuant to the terms of this Agreement.
(aa) “Relevant Legislation” means:
(i) any Act, regulation, rule, ordinance, proclamation, by-law or similar statutory instrument, whether of the Commonwealth, State, local or other duly constituted authority;
(ii) the rules and regulations of any relevant Snowy Mountains and all public bodies and companies whose property or rights are or may be affected in any way by the Services;
(bb) “Services” mean all Services, including Design Consultation Services and Installation Services, supplied by Snowy Mountains to the Client and includes the any supply of Goods.
(cc) “Site” means the property which the Client has control over and in relation to which the Services will be provided.
(dd) “Site Amenities” means amenities usually provided on site including, but not limited to, meal room, toilets, cold running water, microwave and fridge.
(ee) “Snowy Mountains” means Snowy Mountains Level 1 Pty Ltd, its successors and assigns, or any person nominated by Snowy Mountains to act on their behalf from time to time.
(ff) “State” means the State of New South Wales in the Commonwealth of Australia.
(gg) “Supply Authority” means the authority which owns the network in the relevant region where the Services are being provided.
(hh) “Tender” means where Snowy Mountains is required to tender for all or part of the Services, the documentation submitted to the Client to tender for those Services (which will include the Quote).
(ii) “Term” means the term of this Agreement from the Commencement Date to the Expiration Date or such further period as the parties may mutually agree to in writing.
(jj) “Warranties” means those warranties as set out in clauses 9, 10 and 17.13.
2. Acceptance
The Quote is valid for acceptance by the client for 30 days unless specified otherwise in writing.
The Client has received, read and understood the Quote and acknowledges that the Quote forms part of the Agreement.
Any variation to the Quote and/or these Terms & Conditions:
a. must be agreed to in writing by both parties; and
b. may incur a variation fee at the discretion of Snowy Mountains.
By signing the Quote, paying a Deposit or confirming acceptance of the Quote, the Client:
a. engages Snowy Mountains to carry out the Services specified in the Quote; and
b. agrees to all terms of the Agreement.
3. Services
The Quote specifies the Services, which may vary as follows:
a. Design Consultation Services;
b. Installation Services; and
c. any combination of the above
For any matters not specifically addressed to your enquiry or this Quote, our Quote is based on AS2987 “General conditions of contract for the supply of equipment with or without installation”.
Where the Client requires further services (“Additional Services”) Snowy Mountains may at its discretion agree to provide the Additional Services as Variation and will provide an updated quote, in accordance with clause 6.
Unless otherwise expressly stated on the Quote, the Services will include:
a. Any Site visits required by the Supply Authority;
b. Arranging and booking any outage connection with the Supply Authority (28 days’ notice required);
c. Excavation and trenching;
d. Service location (if required);
e. All documentation required by the Supply Authority;
f. Earthing limited to two (2) stakes driven into the ground;
g. Mobilising and demobilising to Site.
Provision of the Services is at all times subject to the Client:
(a) obtaining the necessary information required to carry out the Services, including but not limited to any environment reports prepared in relation to the Site and the Client’s development, a site plan/survey in .dwg format including MGA coordinates and internal civil layout;
(b) providing free and unrestricted access to all required work areas on Site; and
(c) ensuring:
any provided equipment or existing plant complies with any government regulations;
appropriate authorities are in place to allow Snowy Mountains to liaise with Supply Authority on the Client’s behalf.
The Client agrees to provide a safe Site, including:
(a) Providing clear and free access to all work areas and equipment;
(b) Informing Snowy Mountains prior to the commencement of work about any known hazardous materials, risks, health and safety issues onsite; and
acknowledges that any additional costs to ensure a safe workplace are the responsibility of the Client and are payable in addition to the Fees.
Services will be provided Monday – Friday, 7.30am – 4.00pm (not including public holidays) unless specified otherwise. All work performed outside normal standard working hours may incur additional costs at Snowy Mountains’ sole discretion.
Services will comply with relevant codes, standards and specifications required under applicable law, and the conditions of any relevant development consent, development or construction certificate.
Where the Services include the installation of goods, the location of the Goods is at the Client’s discretion, subject to Supply Authority approval and certification, and:
(a) Snowy Mountains takes no responsibility for failure to comply with regulations if the Client does not accept Snowy Mountains’ recommended location; and
(b) in the event that Goods require relocation, this will be at the Client’s expense.
The Client agrees and acknowledges that:
(a) in order for Installation Services to be provided, a power outage must be arranged with Supply Authority, and:
(i) to arrange the power outage Snowy Mountains must provide minimum 28 days’ notice;
(ii) once arranged, the cost of the outage is locked in;
(iii) the ability for the power outage to take place and Installation to occur is subject to weather and access issues;
(iv) if Snowy Mountains is unable to do the installation on the planned outage date then it has to be rebooked and another minimum 28 days’ notice required; and
(v) If a further cost incurred due to a rescheduled outage for a reason outside of the control of Snowy Mountains, then that additional cost may be added to the Price.
(b) The ability for Snowy Mountains to provide the Services and the timing of the Services is dependant on the Supply Authority power outage; and
(c) Snowy Mountains will not be held liable for any time delays caused by the Supply Authority.
The Services may not be varied except as follows:
(a) by agreement in writing by both parties; or
(b) where determined by Snowy Mountains as necessary in order for the Services to be fit for purpose or to meet the Supply Authority certification.
It is our strict policy to only undertake live work near live conductors where it is safe to do so, particular emphasis is placed on: Compliance with AS/NZA 4836:2001 “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and State Statutory Acts and Work Place Regulations”. Our live work procedure is designed to eliminate risk or injury to our employees, damage to your installations and unexpected power disconnections. The above may require us to disconnect or isolate parts of the installation to undertake such work for which additional charges may be applicable.
Performance data provided by Snowy Mountains is based on our experience and from up to date regularly calibrated test equipment. Please be aware we can accept no liability if performance parameters are changed by the Client at the site after final testing and verification.
4. Goods
Where the Services include the provision of Goods, the Client:
(a) accepts responsibility for the Goods following delivery; and
(b) releases and indemnifies Snowy Mountains from any personal or property damage caused by the Goods that occurs following delivery.
The times quoted for delivery of Goods are estimates only and Snowy Mountains:
(a) accepts no liability for failure or delay in delivery of goods;
(b) may deliver Goods by instalments;
(c) will not be liable for any cost incurred as a result of unavailability of ordered Goods.
Snowy Mountains retains legal and equitable title to any Goods supplied to the Client until full payment is made for all Goods and Services supplied by Snowy Mountains pursuant to this Agreement. The Client gives irrevocable authority to Snowy Mountains to enter the Site, or any other location on which the Goods are situated, at any reasonable time after default by the Client, in order to remove and repossess any Goods, and to sell those Goods if necessary to recover unpaid monies.
4.4 Return of Goods
(a) Credits will only be allowed if authorised by Snowy Mountains and at a value calculated by Snowy Mountains.
(b) Claims for credits must be made in writing within seven (7) days of delivery and invoice number and date quoted.
(c) Goods being returned are at the risk and cost of the customer at all times. Re-stocking fees may apply.
5. Price and Quote
5.1. The Price is as specified on the Quote, unless varied in accordance with clause 5 or Clause 6, and includes:
(a) Fees imposed by the Site Authority, at the rates charged at the time of providing the Quote;
(b) The cost of the inclusions specified at clause 3.4.
5.2. The Quote has been provided based on the information available at the time of Quote, including the following assumptions (unless specified otherwise on the Quote):
(a) that supplier items and major material items can be ordered and stored either on Site or off Site with storage certificates issued and payment made for materials held in storage;
(b) based on the cost of labour and materials at the date of the Quote;
(c) no special or Site allowances are payable;
(d) Site Amenities and ablutions will be available to Snowy Mountains on Site free of charge;
(e) no Site inductions are required;
(f) where imported equipment is involved, based on the exchange rate at the time of the Quote (Base Exchange Rate);
(g) the Site is a hazardous material free environment, and no allowance has been made for the classification or removal of contaminated spoil;
(h) excavation rates based on other than rock (j) (OTR) excavations;
(i) the Services will be provided as one continuous project, devoid of delay and with the provision of equipment and services by others as and when needed.
5.3. The following external costs will be added to the Price and specified on the final invoice, unless specifically included on the Quote or otherwise agreed in writing:
(a) If the Services include Design Consultation Services:
(i) any additional changes or works required by Supply Authority which incur extra/additional fees and/or charges; and/or
(ii) Any additional Supply Authority fees incurred as a result of the variation to the Design by Supply Authority.
(b) Street Lighting Design Certification fees;
(c) If a geotechnical survey is required, the associated costs charged by the subcontractor engaged to undertake the survey;
(d) If the Supply Authority requires its existing network remote from the Site to be upgraded to accommodate the proposed additional load due to the Services, the additional costs associated with the preparation of these plans;
(e) If it is determined that further assessment is required following the
Environmental Impact Assessment undertaken by Snowy Mountains to meet the requirements of the Supply Authority, the cost of the additional assessment required to be undertaken by an environmental specialist;
(f) All other fees and charges charged by third parties and required for the Services to be completed.
5.4. We may vary the Price in accordance with clause 6 on the basis of one or more of the following:
(a) A change is required to the design or scope of Services for a reason outside of the control of Snowy Mountains;
(b) a change in the Fees charged by the
Supply Authority or regulatory body, including any Council or IPART fees;
(c) the following additional works are required in order for the Services to be provided:
(i) more than two (2) stakes are required for earthing;
(ii) additional traffic control, unless specified as included on the Quote;
(iii) tree clearing;
(iv) easement surveys and registration costs;
(v) non-destructive boring or trenching;
(vi) the cost of a temporary generator if required;
(vii) reinstating driveways, pathways and road crossings;
(viii) the pegging of boundaries or easements;
(ix) hard rock excavations, including blasting of pole and stay foundations due to rock, based on a quoted cubic meter rate or hourly rate until the Services are completed.
(d) If the Supply Authority requires further earthing assessments to be carried out by a suitably qualified specialist, in addition to the standard soil resistivity tests will be conducted by Snowy Mountains.
(e) when the Client requests work to be down outside of the hours of 730am to 4pm Monday to Friday;
(f) the actual exchange rates vary from the Base Exchange Rate, then the component of imported Goods included in the Price will be adjusted accordingly.
(g) advice by you following provision of the Quote that:
(i) Site and special allowances are payable, in which case the allowances plus 20% will be added to the Price;
(ii) Site Amenities and ablutions will not be available to Snowy Mountains on Site free of charge;
(iii) Site inductions are required;
(h) a change in the taxation applicable to the Services at any time during the term of the Agreement which affects the cost of materials, services or labour, or which may apply to the total invoiced Price;
i) hold over time, waiting time, industrial disputes, inclement weather or any other time spent because of delays/prolongation caused by others will be charged at the agreed contract hourly rates.
(j) a change in the price of copper between the time of Quote and the time of providing the Services;
(k) a change in cost of labour and materials, which are subject to price variation in accordance with the National Electrical Contractors Association (State Chapter NSW) Standard Price variation Formula;
(l) the Client requests acceleration of the works to meet revised programming.
5.5. The Quote is valid only if the site equipment/plant is in the same condition as stated when the Quote was prepared. Any additional costs incurred due to changes or further damaging of equipment by others will be deemed to be a variation to the Agreement.
5.6. Unless otherwise stated in the Quote the Price does not include GST. In addition to the Price the Client must pay
(a) to Snowy Mountains: an amount equal to any GST Snowy Mountains must pay for any provision of Goods and Services by Snowy Mountains under this or any other agreement;
(b) GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price;
(c) any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Price.
5.7. Except where such expenses are specifically stated in the Quote Snowy Mountains will be reimbursed for all expenses and other disbursements reasonably and properly incurred in connection with the Services (e.g. Consultants, travel, communications, couriers), which will be charged at the cost involved (net of GST) to Snowy Mountains, plus a ten percent (10%) administration fee.
6. Variations
6.1. If Snowy Mountains deems that a variation to the Price is reasonably necessary to provide the Services in accordance with clause 5.4, and the change to the Price is less than 15% of the Price, then the Client agrees that Snowy Mountains:
(a) is entitled to vary the Price; and
(b) will notify the Client of the variation of the Price in writing.
6.2. If Snowy Mountains deems that a variation to the Price is reasonably necessary to provide the Services in accordance with clause 5.4, and the change to the Price is more than 15% of the Price, then the Client agrees that Snowy Mountains:
(a) will notify the Client of the proposed change in writing; and
(b) the Client will have a period of 7 days from the time of notification to reject the change in Price; and
(c) if the change is not rejected, then the varied Price will be agreed.
6.3. If there is a proposed change to the Services, whether requested by the Client or deemed necessary by Snowy Mountains, which will vary the Quote:
(a) variations to this fee proposal will be charged at $210 per hour + GST;
(b) Snowy Mountains will submit to the Client a “Variation to Contract” form;
(c) Upon Client Acceptance of the Variation to Contract, this Agreement will be varied accordingly.
7. Payment Terms
7.1. As consideration for providing the Services, the Client will pay the Price specified in the Quote via an accepted payment method identified on the footer of the Quote and/or invoice.
7.2. If Snowy Mountains determines that further work that was not allowed for in the Quote is necessary or Additional Services are required, Snowy Mountains will immediately notify the Client of any additional fees and which will become part of the Price.
7.3. Terms of Payment – Design Consultation Services
(a) the Client will pay a Deposit of $5000 plus GST or 10% of the Price specified on the Quote (whichever is greater) on acceptance of the Quote. The Deposit is non-refundable. Snowy Mountains may, in its discretion, refund the Deposit to the Client on hardship grounds, less any restocking or handling fees;
(b) Payment of the balance of the Price is due on or before completion of the Design Consultation Services;
(c) Payment terms for approved account holders will be specified in a separate account agreement.
7.4. Terms of Payment – Installation Services
(a) the Client will pay a Deposit of 50% of the Price on acceptance of the Quote. The Deposit is non-refundable. Snowy Mountains may, in its discretion, refund the Deposit to the Client on hardship grounds, less any restocking or handling fees;
(b) Snowy Mountains will issue monthly invoices, and the Client will pay the invoices within 7 days, for the following components of the Price and other charges, including:
(i) all fixed and unfixed materials at site;
(ii) electrical switchboards designed specifically for this project;
(iii) mains and sub mains cables;
(iv) all materials and other equipment stored off site because of delays in construction or unavailability of site access;
(v) all approved variation works in progress;
(vi) 80% of all unapproved variations of works in progress;
(vii) up to 10% of the contract value for mobilization, project setting up, commitment to initial procurement of materials and subcontracts and other costs and obligations incurred at the commencement of the Services.
(c) The balance of the Price is due on or seven (7) days prior to completion of the Installation Services and/or connection of the power supply.
(d) Snowy Mountains reserves the right to require full payment of the Price before certification is issued, including Letter of Acceptance and Permission to Connect letter.
7.5. Payment of Invoices
(a) In the event that payment of any invoice issued under this clause 7 is delayed, Snowy Mountains reserves its rights to:
(i) charge interest monthly at a rate of 3% per month on the monthly balance form end of month goods supplied if account becomes overdue;
(ii) apply part payments firstly against interest;
(iii) suspend provision of the Services until payment of all outstanding invoices are received.
(b) If Snowy Mountains incurs costs in recovering or attempting to recover any Goods or amounts owing by the Client, including any debt collectors commission and any solicitors’ costs and it reserves its rights to:
(i) Pass those costs to the Client; and
(ii) Apply any part payment firstly against interest then debt recovery charges, then the outstanding Price.
8. Client Obligations
The Client agrees
(a) to provide all information and documentation reasonably requested by Snowy Mountains to enable it to provide the Services, including but not limited to:
(i) Any environmental reports prepared in relation to the Site;
(ii) Site plan/survey in .dwg format including MGA co-ordinates & internal civil layout;
(iii) Information regarding possible safety issues and site specific hazards that may have been identified for the site;
(b) And acknowledges that Snowy Mountains will rely on the information the Client provides, and will not be responsible or liable for any inaccurate or incorrect information in the information the Client provides.
8.2. It is a strict condition of this Agreement that the Client accepts full responsibility for the resolution of any problems and for delays and additional costs which may result from the presence of hazardous materials in or about the Site.
8.3. The Client agrees not to solicit or entice away from Snowy Mountains (or attempt to do so) any employee, consultant or customer of Snowy Mountains or engage any of Snowy Mountains employees in any other capacity without prior notice and permission of Snowy Mountains.
9. Snowy Mountains Warranty
9.1. Snowy Mountains warrants its workmanship for a period of 12 months from date of delivery or as set out by the network provider.
9.2. This warranty is limited to making good replacement of those parts of our supply, if found to be incorrectly connected or fitted. Where parts or goods are defective which have been supplied to us by others, these are subject to that manufacturers or suppliers’ warranty.
9.3. Snowy Mountains does not make any representation or warranty that the Site is suitable or not suitable for any particular use, nor that the Client’s intended use of the Site is in accordance with any applicable law.
10. Retention
10.1. Following handover, any defect claim is between the Supply Authority and the Level 1 constructor. Snowy Mountains Level 1 has a Perpetual Bond with the Supply Authority and therefore shall not accept retentions in payments of our Progress Claims.
11. Confidentiality
11.1. The Client will treat as confidential all Confidential Information, including but not limited to information provided in the Quote and this Agreement, any schedules and/or annexures, or Additional Terms.
11.2. The Client agrees that it or its employees, agents, directors, partners, shareholders or consultants:
(a) Will not disclose to any person, any Confidential Information which may have come to their knowledge as a result of this Agreement or performance of the Services;
(b) will take all necessary precautions to prevent unauthorised access to the Confidential Information;
(c) will not divulge any information regarding the nature or progress of the Services or give any publicity concerning the Services except with the written consent of Snowy Mountains
11.3. All Confidential Information will remain the property of Snowy Mountains and will be returned at completion of the Services or upon the expiration or termination of this Agreement.
11.4. The Client acknowledges that Snowy Mountains will be entitled (in addition to any entitlement to damages) to an injunction or other equitable relief with respect to any actual or threatened breach by the Client of this clause 10 and without the need on the part of Snowy Mountains to prove any special damage.
11.5. The Client’s obligations under this clause 10 shall not extend to:
(a) information already in the public domain other than due to a breach of this Agreement; or
(b) any disclosure required by law.
12. Intellectual Property
12.1. The Client acknowledges that the Project IP:
(a) will become and remain the sole property of Snowy Mountains;
(b) will be freely available for Snowy Mountains to use in its absolute discretion in any of its decision making processes or any of its subsequent projects or approvals or work, reporting requirements and/or as the basis for follow-on consultancies;
(c) where applicable, Project IP will be provided to Snowy Mountains by the Client in such forms or formats as Snowy Mountains reasonably requires and without fetter or restriction by password or code or otherwise.
12.2. The Client acknowledges Snowy Mountains’ right, title and interest in and to Snowy Mountains’ Intellectual Property, and agrees to take all reasonable steps to ensure the protection and continuance of that right, title and interest in or to the Intellectual Property and, without limiting the generality of the foregoing, the Client agrees as follows:
(a) not to represent itself as the owner or having any right, title or interest in Snowy Mountains Intellectual Property or any part thereof except as otherwise agreed to in writing by Snowy Mountains;
(b) not to use or allow the use of the Intellectual Property or any part thereof in a manner which is likely to lead to confusion or is contrary to or conflicts with or in any way damages the right, title or interest of Snowy Mountains in the Intellectual Property;
(c) to obtain Snowy Mountains’ prior written consent to any use of Snowy Mountains’ Intellectual Property other than for use under this Agreement.
12.3. Each of the parties grants to the other party a non-exclusive, royalty fee, non-transferrable licence to use pre-existing Intellectual Property for the sole purpose of providing the Services pursuant to this Agreement (“Licence”). The parties agree and acknowledge that this Licence will be revoked immediately upon completion of the Services pursuant to this Agreement or in the event that the Agreement is otherwise terminated.
12.4. The Client indemnifies and will at all times keep Snowy Mountains indemnified against any Claim for or liability to pay compensation or damages and costs or expenses arising out of or in respect of any breach of any third party’s Intellectual Property rights relating to the provision of services under the Agreement.
12.5. The Client must immediately notify Snowy Mountains of any Claim, demand threat or notice of proceedings against the Client, relating to any Intellectual Property.
13. Cancellation and Termination
13.1. If Services with a set start date are cancelled less than 14 days prior to the scheduled start date, and no alternative work can be undertaken at Site, then Snowy Mountains is entitled to invoice the Client for:
(a) all materials committed to the job (on or off site);
(b) all labour charges not able to be deployed at the agreed rate.
13.2. In the event of a delay on site where no alternative activities can be undertaken at site a charge will be made for all man hours committed to the work at the time of the delay where these are not able to be otherwise deployed.
13.3. Either party may terminate this Agreement without penalty and with immediate effect by written notice to the other party if the other party:
(a) commits a material breach of any of its obligations under this Agreement, and if such breach is capable of remedy, defaulting party does not remedy the breach;
(b) within five (5) business days after the date on which written notice of the breach is provided by the other party (or such other period as is agreed between the parties);
(c) commits a fraudulent act or omission;
(d) is the subject of an Insolvency Event;
(e) undergoes a Change in Control without other party’s prior written approval; or
(f) breaches the Warranties.
13.4. If this Agreement is terminated for any reason then termination however caused does not affect any accrued rights or remedies in which the non-defaulting party possesses pursuant to the term of this Agreement, at law or pursuant to any Relevant Legislation.
13.5. If a party terminates this Agreement in accordance with clause 12.3 then the defaulting party is liable for and indemnifies the non-defaulting party against any loss of whatever nature incurred by the non-defaulting party.
13.6. If the Agreement is terminated in accordance with this clause 12:
(a) Snowy Mountains must stop providing the Services and take all reasonable steps to minimise loss resulting from that termination;
(b) subject to clause 7.3 and 7.4 the Deposit will not be refunded to the Client;
(c) the Client will be liable for payment for any Services provided up to and including the date of Termination.
14. Force Majeure
14.1. If a Force Majeure event affects Snowy Mountains, or its employees, agents, sub-contractors, officers or such other third parties in which Snowy Mountains is responsible for so as to preclude Snowy Mountains partially or wholly from complying with its obligations pursuant to the terms of this Agreement then:
(a) as soon as reasonably practicable after that Force Majeure event arises, Snowy Mountains must notify the Client of the Force Majeure event, stating specifically the obligations under the terms of the Agreement in which Snowy Mountains is precluded from performing together with the expected duration of the delay arising directly out of the Force Majeure event (“Affected Obligation”);
(b) Snowy Mountains’ obligation to perform the obligations affected by the Force Majeure event will, be suspended for the duration of the actual delay arising out of the Force Majeure event; and
(c) the Client’s obligation to perform any of its obligations, excluding the obligation to make payment on a particular date which are dependent on the Affected Obligation will be suspended until Snowy Mountains resumes performance.
14.2. In the event of a Force Majeure event occurring, subject to Snowy Mountains complying with its obligations as set out under this clause 13 and their obligations otherwise as set out in this Agreement then this will not be treated as a breach of the Agreement by Snowy Mountains.
15. Limitation of Liability, Indemnity and Release
To the maximum extent permitted by law, Snowy Mountains will not be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, good-will, or other intangible losses (“Consequential Loss”).
Insofar as Snowy Mountains may be liable, the maximum liability of Snowy Mountains, whether in contract, tort, equity, under statute or otherwise for any loss, damage or injury arising directly or indirectly from any breach of Snowy Mountains’ obligations under the Agreement is, except where applicable law expressly requires otherwise, limited, at the option of Snowy Mountains, to any one or more of the following:
15.3. If the breach relates to Goods:
(a) The replacement of the Goods or the supply of equivalent Goods;
(b) The repair of such Goods;
(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) The payment of the cost of having the Goods repaired;
15.4. If the breach relates to Services:
(a) The supplying of the Services again; or
(b) The payment of the cost of having the Services supplied again.
15.5. Under no circumstances will Snowy Mountains be liable for any claims, damages, obligations, losses, liabilities, costs, debt and expenses (whether consequential or indirect and including but not limited to business interruption, lost profits or lost data) arising from:
(a) the Client’s conduct including but not limited to any violation of any term of the Agreement;
(b) the Client’s violation of any third party right, including but not limited to any copyright, property, or privacy right;
(c) the conduct, action or omission of any Third Party, including without limitation, any defamatory, offensive or illegal conduct of
any Third Party; and
(d) any action by the Client which voids or decreases Snowy Mountains benefits under any applicable insurance policy.
15.6. The Client agrees to defend, indemnify, release from liability and hold harmless Snowy Mountains (including its officers, directors, employees and agents) from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including consequential loss) arising from 14.5 above.
15.7. Unless specifically stated on the Quote, Snowy Mountains will not accept liquidated damages. Where acceptance of liquidated damages is specifically stated, these will in any case be limited to a maximum of 1% of the net Price per week to an overall maximum of 5% of the net Price, and will only then be applied where the cause for such damages is directly applicable to actions in our part.
16. PPSA
16.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all collateral (account) – being a monetary obligation of the Client to Snowy Mountains for Services – that have previously been provided and that will be provided in the future by Snowy Mountains to the Client.
16.3. The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Snowy Mountains may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
(b) indemnify, and upon demand reimburse, Snowy Mountains for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Snowy Mountains;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the collateral (account) in favour of a third party without the prior written consent of Snowy Mountains.
16.4. Snowy Mountains and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7. Unless otherwise agreed to in writing by Snowy Mountains, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
16.8. The Client must unconditionally ratify any actions taken by Snowy Mountains under clauses 15.3 to 15.5.
16.9. subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1. In consideration of Snowy Mountains agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2. The Client indemnifies Snowy Mountains from and against all Snowy Mountains’ costs and disbursements including legal costs on a solicitor and own Client basis incurred in exercising Snowy Mountains’ rights under this clause.
17.3. The Client irrevocably appoints Snowy Mountains and each director of Snowy Mountains as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
18. General
18.1. This Agreement constitutes the entire agreement between both parties in relation to the Services, and any previous correspondence is expressly excluded. Both parties declare that there are no extraneous agreements, representations or undertakings either express or implied, which affect this agreement.
18.2. These terms and conditions may only be varied and/or amended by agreement in writing between the parties, and where there is a variation or inconsistency between
(a) provisions of the Quote, this Agreement, any annexure or schedule or Additional Terms, the documents shall have precedence in the following order, to the extent of any inconsistency:
the provisions of this Agreement;
(b) any annexure or schedule (including any payment schedule) to this Agreement, signed by both parties;
(c) the Quotation; and
(d) Additional Terms.
18.3. Snowy Mountains Level 1 is engaged as an independent contractor and nothing in this Agreement will be deemed to constitute Snowy Mountains as an agent or employee of the Client.
18.4. Electronic signatures will be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
18.5. Information and Drawings
All descriptive specifications, illustrations, drawings, dimensions, etc, furnished by us are approximate only and are intended to be by the way of general description of the goods and service and do not necessarily form part of the contract unless specifically identified as such by us in writing.
18.6. Insurance
Snowy Mountains maintains adequate insurance that protects their property and is appropriate in relation to its business and provision of the Services.
18.7. Severability
If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of the Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
18.8. Waiver of contractual right
The failure of either party to enforce any provision of the Agreement will not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement.
18.9. Privacy
(a) All ‘personal information’ (as defined in the Privacy Act 1988 supplied by the customer (including any Credit information) will be used by Snowy Mountains for the purpose of processing this Credit Application and, subject to approval of the Application, will be used to administer the Trading Account (‘primary purpose’).
(b) Personal information will not be disclosed to third parties unless this is consistent with the primary purpose or the disclosure is required or authorised by law.
(c) For the purpose of enforcing its rights under this Agreement, Snowy Mountains may at times be required to disclose personal information to third parties such as debt collection agencies and legal providers.
18.10. The Client will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Snowy Mountains nor to withhold payment of any invoice because part of that invoice is in dispute.
18.11. Snowy Mountains may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.12. The Client agrees that Snowy Mountains may amend these terms and conditions at any time. If Snowy Mountains makes a change to these terms and conditions, then that change will take effect from the date on which Snowy Mountains notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Snowy Mountains to provide Services to the Client.
18.13. Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow it to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on the