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Terms & Conditions

for services provided by

Flux Air Pty Limited
(ABN 32 156 169 167)

 

 

1.Definitions and interpretation

1.1The Definitions and interpretation to be applied to this agreement are as contained in Schedule 1.

2.Engagement of Flux Air

Engagement

2.1The Client engages Flux Air Pty Limited (ABN 32 156 169 167) (Flux Air) on a:

(a)non-exclusive basis; or

(b)exclusive basis (for Maintenance Contracts),

to provide the Services to the Client, and Flux Air hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.

Non exclusivity

2.2Except for Maintenance Contracts, the Client may at any time engage any third party, or use any member of the Client’s staff, to provide goods and/or services similar or identical to the Services.

2.3Subject to Flux Air's obligations under this agreement, Flux Air may provide services similar to the Services to any other person during the term.

Commencement and duration

2.4Flux Air’s engagement with the Client will:

(a)commence on the date agreed by Flux Air; and

(b)continue until completion of the Services; or

(c)for Maintenance Contracts, remain in force for 2 years and thereafter continue on a 3-month-by-3-month basis; or

(d)continue unless and until it is terminated in accordance with clause 13.

2.5The parties may be mutual agreement extend the term and the clients continued instructions for Services will constitute agreement of these terms.

2.6These terms may be varied in writing at any time by Flux Air and uploaded onto Flux Air’s website.  By uploading these terms onto the website, the Client agrees to be bound by the terms.

Nature of relationship

2.7Flux Air is an independent contractor of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.  Flux Air does not have, and will not hold out the Client as having, any authority to bind the Client in any matter including but not limited to any contracts, commitments, expenses, liabilities or obligations of any nature.

3.Provision of the Services

Quote

3.1Flux Air will provide a Quote to the Client. 

3.2Where the Services are provided by Flux Air via Quote; the Client may accept that Quote by:

(a)Requesting or continuing to request that Flux Air complete the Services for which the Quote has been provided, verbally or in writing;

(b)Signing the Quote; or

(c)Otherwise indicating to Flux Air, through whatever format is used, that the Quote has been accepted, or that the Services are to be commenced.

3.3Flux Air reserves the right to amend a Quote by notice in writing to the Client at any time after the Quote issues.

4.Variations

Repairs / defects

4.1During the provision of the Services, Flux Air may detect a defect, issue or fault (Fault) with the product.

4.2In the event of a Fault being detected, the Client acknowledges and agrees that:

(a)Flux Air may be required to undertake further work to diagnose the issue; 

(b)Any additional work associated with a Fault will be charged in accordance with Flux Air’s hourly rates or otherwise quoted at that time; and

(c)The Fault will be classified as a Variation to the initial Quote.

Variations

4.3Either party may, from time to time, request Variations of the contract from the other party.  

4.4A Variation:

(a)Must be agreed by the parties.

(b)will constitute a new Quote; and

(c)will require a revised Quote to be issued to the Client.

4.5The parties acknowledge and agree that:

(a)The revised Quote supersedes the original Quote; and

(b)Flux Air has an automatic extension of time for the provisions of the Services equal to the delay caused by the Variation.

5.Maintenance Contracts

5.1Flux Air will provide Maintenance Contracts on an exclusive basis.

5.2Maintenance Contracts are provided on a scheduled basis and the Client must contact Flux Air to schedule appointments during Flux Air’s ordinary business hours.

5.3If the Client requires the Services outside ordinary business hours, additional costs will be incurred.

5.4The Client must provide unobstructed access to all equipment.

5.5If the Client engages a third party or representative other than Flux Air to undertake the maintenance services, Flux Air accepts no responsibility or liability for those repairs and the Maintenance Contract will be immediately terminated.

6.Pricing and payments

Pricing

6.1Flux Air will invoice the Client for the relevant Services (exclusive of GST and Expenses) (the Fees) following completion of all relevant work.

6.2Flux Air may charge by way of a fixed price or hourly rate, depending on the scope and type of Services required and at their sole discretion. 

Deposit (if any)

6.3Flux Air may request a deposit, to be paid upon commencement of the Services (Deposit).

6.4If the Services are in relation to Maintenance Contracts, a Deposit will be payable prior to commencement of the Services at a percentage determined by Flux Air.

6.5In the absence of any material breach by Flux Air constituting a repudiation or deemed repudiation of this agreement, the Deposit is non-refundable.

Reimbursement of Expenses

6.6The Client will pay all reasonable expenses properly and necessarily incurred by Flux Air in the course of providing the Services, provided that Flux Air:

(a)provides the Client with acceptable documentation for the expenses incurred; and

(b)complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to Flux Air by the Client prior to the relevant expense being incurred.

Timing of payments

6.7The Client must pay to Flux Air all other Charges properly invoiced pursuant to clause 4 in full on or before the date that is 30 days after the Client’s receipt of the relevant invoice.

6.8Flux Air reserves the right to:

(a)Invoice the Client for instalment payments throughout the provision of the Services; and

(b)Request monthly progress claims be paid from the Client based on ordered materials and a percentage of completion of works.

6.9For Maintenance Contracts, the following additional provisions apply:

(a)The maintenance services are charged as an annual fee;

(b)Flux Air will invoice the annual fee to the Client on a quarterly pro-rata basis;

(c)A call out fee will apply; and

(d)Flux Air has sole discretion to charge additional fees including for repairs, emergencies and any other tasks that arise from the maintenance services.

Method of payment

6.10All amounts to be paid by a party to another party under or in connection with this agreement must be paid into the account nominated by the other party.

No set-off or deduction

6.11Unless otherwise agreed in writing, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.

Default interest

6.12If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly.  Interest will accrue from day to day and will be payable on demand.  The payment of interest by a party to another party in respect of any late payment under this clause 6.12 is in addition to any other remedies that the other party may have in respect of such late payment.

7.GST

Definitions regarding GST

7.1In this clause 7:

(a)expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b)any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 7; and

(c)any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 7.

Consideration is exclusive of GST

7.2Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 7.

8.PPSA

8.1The Client hereby irrevocably authorises Flux Air to:

(a)conduct a PPSR search prior to providing the Services or credit; and/or

(b)register an interest in their personal property on the PPSR register. 

8.2In this clause 8, words and expressions that are not defined in this agreement but that have a defined meaning in the PPSA have the same meaning as in the PPSA.

Information provided by the Client

8.3The Client represents and warrants that all information provided by or on behalf of the Client to Flux Air (including the Clients details, entity name, ACN/ABN and address as set out in this agreement) is correct in all respects.  The Client must not change any such information without providing Flux Air with at least 1 month's prior written notice of the change.

Waiver of PPSA rights

8.4The Client hereby waives its rights under the PPSA to:

(a)receive a copy of any notice under the PPSA unless the notice is required to be given by the PPSA and contracting out of the giving of the notice is prohibited by Law;

(b)object to a proposal by Flux Air to dispose of, purchase or retain any of the personal property of the Client in satisfaction of any obligation owed by the Client to Flux Air; or

(c)receive a statement of account following the sale of any of the client’s assets.

Enforcement

8.5The enforcement provisions contained in this agreement are in addition to any rights available to Flux Air under the PPSA and apply to the maximum extent permitted by Law.

8.6Without limitation to clause 8.5 or any other provision of this agreement, the parties hereby contract out of sections 125, 129(2), 142 and 143 of the PPSA.

9.Guarantees

9.1Flux Air may request, at any time, that where the Client is not an individual, the Client must provide a Guarantor/s.

9.2The Guarantor/s (jointly and severally) unconditionally and irrevocably guarantee to Flux Air the performance in full by the Client of all of its obligations as and when those obligations fall due for performance in accordance with the terms of this agreement.

9.3If, and on each time that, the Client fails to perform any obligation under this agreement in full and when due, the Guarantor/s must, on demand, without requiring Flux Air to first:

(a)Take any steps against the Client or any other person; or

(b)Enforce any encumbrance that it may hold in relation to this agreement,

perform that obligation in full and when due in accordance with the terms of this agreement as if the Guarantor/s were the principal obligors in respect of that obligation under this agreement, including payment to Flux Air of any invoiced amounts required under this agreement.

9.4This guarantee survives completion or termination of this agreement.

10.Confidentiality

10.1Subject to clauses 10.2, each party must:

(a)keep all Confidential Information confidential;

(b)not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;

(c)not disclose or make available any Confidential Information in whole or in part to any third party;

(d)not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and

Exceptions

10.2the parties agree that the following are exceptions to this clause:

(a)the party may disclose Confidential Information to those of its employees who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such representatives of the confidential nature of the Confidential Information before such disclosure;

(b)is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person; or

(c)is required by law or court order to be disclosed.  

11.Non-disparagement

11.1On and from the date of this agreement, each party must not:

(a)make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or

(b)cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,

and must take all reasonable steps to prevent its Representatives from doing so.

12.Liability and remedies

Indemnity

12.1The Client irrevocably indemnifies and covenants to hold Flux Air harmless from and against all Losses suffered by Flux Air (including third party claims on Flux Air) which arise in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct of the Client.

12.2Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full.

Limitation of liability

12.3(Disclaimer of warranties) To the maximum extent permitted by law and except as otherwise set out in this agreement, Flux Air and its Representatives expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability and fitness for a particular purpose.

12.4(Limitation of liability) Where the conditions, representations and warranties referred to in clause 12.3 cannot be disclaimed or excluded by law, then the aggregate liability of Flux Air and its Representatives in respect of any Claim for Losses that the Client and/or any of its Representatives may bring against Flux Air in respect of the Services is limited, at Flux Air’s election, to one or a combination of the following remedies:

(a)re-supply of the Services;

(b)payment of the costs of re-supply of the Services by a third party; or

(c)the refund of any amounts paid (either in full or part) by the Client to Flux Air under this agreement in respect of the Services.

Force majeure

12.5To the maximum extent permitted by law, Flux Air and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of Flux Air under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of Flux Air.  The Client acknowledges and agrees that Flux Air holds the benefit of this clause 12.5 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

12.6Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 8 (Confidentiality) and clause 11 (Non-disparagement), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.

13.Termination

Termination for breach

13.1Each party may terminate this agreement immediately by notice to the other party if an Event of Default occurs in respect of the other party.

13.2If a party commits any material or persistent breach of this agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing.  If the Defaulting Party fails to remedy the breach within 20 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate this agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.

Termination with notice

13.3The Client may, without limitation to its rights under clause 13.2, terminate this agreement at any time by giving at least 1 month’s notice to Flux Air with the exception of Maintenance Contracts.

13.4Flux Air may, without limitation to its rights under clause 13.2, terminate this agreement at any time by giving at least 1 month’s notice to the Client.  The Client may waive all or part of such notice period.

13.5For Maintenance Contract, the Client may, without limitation to its rights under clause 13.2, terminate this agreement at any time by giving at least 3 month’s notice to Flux Air.

Effect of termination

13.6In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

(a)the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Client, including Charges incurred by Flux Air for the purchase of materials for those Services prior to such termination); and

(b)Flux Air will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination will apply in respect thereof.

During notice period

13.7In the event that Flux Air’s engagement under this agreement is terminated upon notice by either party the Client may, at its absolute discretion, require Flux Air to refrain from providing the Services during the relevant notice period.

Partially completed deliverables

13.8Upon the cessation of Flux Air’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, Flux Air will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.

Legislation

13.9If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:

(a)time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and

(b)any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

Accrued rights

13.10Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

13.11The obligations of the parties under clause 8 (Confidentiality), clause 11 (non-disparagement), clause 12 (Liability and remedies), clause 14 (non-solicitation) and this clause 13 will survive the termination of this agreement.

14.Dispute resolution

14.1Parties must comply with dispute resolution provisions before litigation or arbitration.

(a)Subject to clause (b) and clause (c), a party must not commence litigation, court proceedings, tribunal proceedings or arbitration relating to a dispute arising under or in connection with this agreement (including a dispute relating to the interpretation of this agreement) (Dispute) without first complying with this clause 14 in relation to that Dispute.

(b)Clause (a) does not prevent a party from seeking urgent injunctive relief or urgent interlocutory relief, provided that:

(i)the party seeks relief in an Australian court of competent jurisdiction; and

(ii)failure to obtain such relief would cause irreparable damage to that party.

(c)Without limiting clause (b), clause (a) does not apply to a party in relation to a Dispute if:

(i)another party is in breach of its obligations under this clause 14 in relation to that Dispute; or

(ii)that Dispute relates to compliance or non-compliance with this clause 14.

Dispute Notice

14.2A party claiming that a Dispute has arisen must give written notice (Dispute Notice) to each other party to the Dispute (each party to the Dispute being a Dispute Party).

14.3A Dispute Party that gives a Dispute Notice in relation to a Dispute must ensure that the Dispute Notice:

(a)sets out in detail the nature and subject matter of that Dispute and the outcome which that Dispute Party seeks in relation to that Dispute; and

(b)designates a person with authority to settle that Dispute as that Dispute Party’s representative for the purposes of this clause 14.

Resolving Disputes by negotiation

14.4Promptly after a Dispute Party has given a Dispute Notice in relation to a Dispute to each other Dispute Party under clause 14.2, each Dispute Party must use its reasonable/ endeavours to resolve that Dispute through mutual discussion and negotiation between the Dispute Parties (or their designated representatives).

14.5If within 10 Business Days after each Dispute Party has received the Dispute Notice in relation to a Dispute (Negotiation Period), the Dispute Parties have not either:

(a)resolved that Dispute; or

(b)agreed in writing an alternative dispute resolution process to resolve that Dispute, including:

(i)a timetable for that process;

(ii)the identity of an independent person to conduct that process; and

(iii)how the Dispute Parties will bear the costs of conducting that process,

                   then clause 16.4 applies.

Resolving Disputes by mediation where negotiation fails

14.6If this clause 14.6 applies in relation to a Dispute, then within 10 Business Days after the end of the Negotiation Period (Referral Period) for that Dispute, the Dispute Parties must refer that Dispute to mediation to be conducted:

(a)by a mediator:

(i)agreed by the Dispute Parties; or

(ii)if the Dispute Parties do not agree on a mediator by the end of the Referral Period, appointed by the Australian Disputes Centre (ADC) / Resolution Institute / the Australian Centre for International Commercial Arbitration (ACICA) (or the chair or other representative of that organisation); and

(b)in accordance with the ADC Guidelines for Commercial Mediation / the Resolution Institute Mediation Rules / the ACICA Mediation Rules applicable at the time of the referral.

Resolving Disputes by arbitration when negotiation fails

14.7If this clause 14.7 applies in relation to a Dispute, then within 10 Business Days after the end of the Negotiation Period for that Dispute (Referral Period), a Dispute Party may / the Dispute Parties must refer that Dispute to arbitration to be conducted:

(a)by an arbitrator (Arbitrator):

(i)agreed by the Dispute Parties; or

(ii)if the Dispute Parties do not agree on an arbitrator by the end of the Referral Period, appointed by [the Australian Disputes Centre (ADC) / Resolution Institute / the Australian Centre for International Commercial Arbitration (ACICA)]; and

(b)in accordance with the ADC Rules for Domestic Arbitration / Resolution Institute Arbitration Rules / ACICA Arbitration Rules] applicable at the time of the referral.

15.Notices

15.1A Notice given to a party under this agreement must be:

(a)in writing in English;

(b)sent to the address, fax number or email address of the relevant party as the relevant party may notify to the other party from time to time; and

(c)delivered/sent either:

(i)personally;

(ii)by commercial courier;

(iii)by pre-paid post;

(iv)if the notice is to be served by post outside the country from which it is sent, by airmail; or

(v)by e-mail.

15.2A notice is deemed to have been received:

(a)if delivered personally, at the time of delivery;

(b)if delivered by commercial courier, at the time of signature of the courier’s receipt;

(c)if sent by pre-paid post, 48 hours from the date of posting;

(d)if sent by airmail, five days after the date of posting; or

(e)if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

15.3To prove service, it is sufficient to prove that:

(a)in the case of post – that the envelope containing the notice was properly addressed and posted; and

(b)in the case of email – the email was transmitted to the party’s email server or internet service provider.

16.General

Further assurances

16.1Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Third parties

16.2This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Entire agreement

16.3This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations, obligations or other terms, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

16.4If a provision or the application of a provision of this agreement is invalid, prohibited, void, illegal or unenforceable in a jurisdiction:

(a)it is to be read down or severed or be ineffective in that jurisdiction to the extent of the prohibition, invalidity voidness, illegality or unenforceability; and

(b)this will not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

16.5Any waiver of a right under this agreement must be in writing and signed by the party granting the waiver.

16.6No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party.  No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Assignment

16.7A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

Governing law and jurisdiction

16.8This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.

16.9The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

* * * *

Schedule 1| Dictionary

 

Definitions

16.10The following definitions apply in this agreement unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

  • means Fees and Expenses.

  • means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.

  • means the party that will receive the Services as named in the Quote.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

  1. any information that is specifically designated by any of them as confidential;

  2. any information which, by its nature, may reasonably be regarded as confidential;

  3. any information relating to any:

    1. agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;

    2. customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or

    3. Intellectual Property Rights,

of any of them; and

  1. any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;

  2. negotiations in relation to, and the terms of, this agreement,

whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible or any other form, relating to Flux Air or any Related Entity of Flux Air including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.

Corporations Act means the Corporations Act 2001 (Cth).

Default Rate means a rate of interest of 12.00% per annum.

  • has the meaning given in clause 6.1.

Event of Default means any of the following on the part of a party:

  1. committing any material or persistent breach of this agreement;

  2. repudiating or, or, in the reasonable opinion of Flux Air, evincing an intention to repudiate, this agreement;

  3. if the Client is a company, undergoing a Change of Control without the prior written consent of Flux Air;

  4. misleading Flux Air in any material way; and/or

  5. an Insolvency Event occurring in respect of the Client.

  • mean the expenses of Flux Air for which Flux Air is entitled to be reimbursed by the Client pursuant to clause 6.6.

  • has the meaning given in clause 6.1.

Force Majeure means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the affected party, including:

  1. an act of God, war, sabotage, terrorism, riot, civil disorder, revolution, national or state emergency, martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the affected party), epidemic or quarantine; and

  2. an action or inaction of any Governmental Agency (including any Court of competent jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, decree or other legally enforceable order.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

  1. has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Guarantor means the individual / director who guarantees payment of the Services, as requested by Flux Air and agreed between the parties in writing.

Insolvency Event means, in respect of a party any of the following events or any analogous event:

  1. where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;

  2. where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;

  3. a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or

  4. the party is otherwise unable to pay its debts as and when they fall due.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:

  1. liabilities on account of Tax;

  2. interest and other amounts payable to third parties;

  3. legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and

  4. all amounts paid in settlement of any Claim.

Maintenance Contracts means a formal arrangement, in writing or otherwise, between Flux Air and the Client, under which maintenance services will be provided for a specific period.  Services under maintenance contracts include regular upkeep, repair and regular inspection of equipment, facilities and systems to ensure those products operate efficiently, effectively and with minimum interruption.

Notice means any notice or other communication by one party to the other party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval.

  • means, in respect of a particular engagement, the document headed "Quote" or “Purchase Order” or similar setting out the scope of the Services for that engagement as provided by Flux Air to the Client and accepted by the parties in accordance with this agreement.

Related Entity has the meaning set out in the Corporations Act 2001 (Cth).

  • means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

  • means the services provided by Flux Air to the Client under this agreement in respect of each engagement, as set out in the relevant Quote.

Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

  • or Taxation means:

    1. any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);

    2. unless the context otherwise requires, Stamp Duty and GST; and

    3. any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Variations means work required or requested to be done outside the scope of works, not allowed for in Flux Air’s Quote and/or arising as a result of any direction or requirement by the Client, provision of the Services or requirements by a statutory authority.

Interpretation

16.11The following rules of interpretation apply in this agreement unless the context requires otherwise:

(a)headings in this agreement are for convenience only and do not affect its interpretation or construction;

(b)no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;

(c)where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d)a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e)references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;

(f)in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;

(g)a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h)an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(i)a reference to writing includes any communication sent by post, facsimile or email;

(j)a reference to time refers to time in Sydney, New South Wales and time is of the essence;

(k)all monetary amounts are in Australian currency;

(l)a reference to a “liability” includes a present, prospective, future or contingent liability;

(m)the word “month” means calendar month and the word “year” means 12 calendar months;

(n)the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(o)a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;

(p)a reference to any thing is a reference to the whole and each part of it;

(q)a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(r)words in the singular include the plural and vice versa; and

(s)a reference to one gender includes a reference to the other genders.

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