1.1.            This agreement is made between:

 

1.1.1.           ADELAIDE SURE FIX MAINTENANCE PTY LTD (ABN 15 642 526 690) referred to hereafter as “we”, “us” or “the Provider”; and

 

1.1.2.           The Owner named in the Order, being the person(s) ordering the Works, Works and/or Services and referred to hereafter as “you” or otherwise, the “Owner”.
 

1.2.            This agreement consists of:
 

1.2.1.           the Provider’s Terms referred to hereafter as the “Terms”, being the terms set out in this agreement;
 

1.2.2.           the Order or Quote;

 

1.2.3.           the terms set out in Schedule A (if applicable);

 

1.2.4.           the schedule of Rates as set out in Schedule B and which may be updated from time to time at the sole discretion of the Provider; and
 

1.2.5.           any drawings, specifications and Special Conditions that may be applicable from time to time.

 

2.1.            The Owner agrees to be legally bound to the Terms when the Owner accepts the offer that the Provider makes to the Owner in an Order or Quote.

 

2.2.            The Owner will be bound to these terms when the Owner accepts the Quote or delivery of any Works, whether in writing by execution or by verbal acceptance, at which point a Contract for that specific Quote shall come into existence.

 

2.3.            Any legal entity or person signing this agreement on behalf of the Owner hereby covenants that he or she has the authority and requisite capacity to sign on behalf of and bind the Owner to these conditions, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.

 

2.4.            Each Order constitutes an offer by the Provider to purchase the Works in accordance with these Terms.

 

2.5.            In the event of any inconsistency between the terms and conditions on a Quote and any other prior document or schedule that the parties have entered into, these Terms shall prevail.
 

2.6.            Any amendment to the terms and conditions contained herein may only be amended in writing by the consent of both parties.

3.1.            Any instructions received by the Provider from the Owner (including the acceptance of a Quote) for the supply of Works and/or the Owner’s acceptance of Works undertaken by the Provider shall constitute acceptance of the terms and conditions contained herein subject to the Owner being able to terminate this contract (subject to clause 3.2) within five (5) business days following the later of:

 

3.1.1.                receipt from the Provider of a signed copy of this agreement or relevant Quote; or

 

3.1.2.                receipt from the Provider of a copy of the appropriate contract information sheet.

 

3.2.            To terminate this agreement in accordance with this clause, the Owner must complete a withdrawal notice within the timeframe specified in clause 3.1 above and:

 

3.2.1.                provide it to the Provider; or

 

3.2.2.                leave it at the Provider’s address in this agreement; or

 

3.2.3.                serve it on the Provider in accordance with any provision in the contract providing for delivery of notices on the Provider by the Owner.

 

3.3.            Where more than one Owner has entered into this agreement, the Owners shall be jointly and severally liable for all payments of the Price.

 

3.4.            Subject to the above clauses, upon acceptance of this agreement by the Owner, this contract is binding and can only be rescinded in accordance with this contract or with the written consent of the Provider.

The following definitions apply herein:

 

4.1.            Act means the Building and Construction Industry Security of Payment Act 2009 (SA) and relevant Regulations.

 

4.2.            Contract means the contract between the Provider and the Owner for the Works, consisting of any relevant Orders, Quotes and these Terms.

 

4.3.            Event of Default means any of the following on the part of the Owner:

 

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

4.3.2.           repudiating or, in the reasonable opinion of the Provider, evincing an intention to repudiate, this agreement;

 

4.3.3.           the Owner’s financial position deteriorating to such an extent that in the Provider’s reasonable opinion, the Owner’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

 

4.3.4.           the Owner undergoing a change of control without the prior written consent of the Provider;
 

4.3.5.           misleading the Provider in any material way; and/or

 

4.3.6.           an Insolvency Event occurring in respect of the Owner.

 

4.4.            Insolvency Event means:

 

4.4.1.           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 bankruptcy or insolvency law;

 

4.4.2.           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;

 

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

 

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

 

4.5.            GST has the same meaning given to that expression in A New Tax System (Works and Services Tax) Act 1999 (Cth), as in force from time to time.

 

4.6.            Practical Completion is when the Works are substantially complete and any incomplete work or unrectified defects are of a minor nature, such that completion or rectification will not unreasonably affect the ability of the Owner to use or occupy the structure and Site.

 

4.7.            Progress Payments means and includes a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) and payment claims under the Building Work Contractors Act 1995 (SA).

 

4.8.            Price means the price quoted in an Order or Quote or otherwise as set out in accordance with these Terms. 

 

4.9.            Quote means a statement of contract details, detailing the specific terms of a Contract with the Owner for the purchase of Works by the Provider, which these Terms apply to and which are either attached, or as per the Quote generated by the Provider through its ordering system or otherwise in the form of an invoice.

 

4.10.        Service includes but is not limited to selling, supplying, diagnosing, troubleshooting, installing, maintaining, or repairing property fixtures, materials, and carrying out general carpentry services and Works supplied for the Owner at the Owner’s request from time to time.

 

4.11.        Site means the place or address the Owner provides to the Provider as specified in the Quote as the designated place, premises or location at which the Works, Works and/or Services are being provided by the Provider to the Owner, and where a site inspection may be carried out by the Provider and/or its employees, agents or contractors.

 

4.12.        Works includes any tangible items, plant equipment, Services, Good(s), product(s) or material(s) required to undertake the Service(s) or incidental to the Service(s), including those goods described in an Order or Quote, together with temporary work and any applicable Variations.

 

4.13.        Variation is a change to the Work or the method of carrying out the Work including removing some of the Work. A Variation will often involve a change to the Price.

The Owner agrees to:

 

5.1.            If requested, give the Provider:

 

5.1.1.       proof before the Work begins that the Price can be paid;

 

5.1.2.      proof of ownership of the Site on which the Work is to be carried out or otherwise that they have a licence, lease or right to access such land with the express consent of the landowner, and provides proof or otherwise warrants that full consent has been obtained from the landowner for the Provider to enter and undertake Work on the Site;

 

5.1.3.      access to the Site before or during the Work to conduct any demolition or discovery of the Site necessary to determine an accurate Quote for the Work;

 

5.1.4.      access for the Provider, its employees, agents, and its subcontractors to the Site as convenient to both parties; and

 

5.1.5.      supply to power, temporary lighting, toilet and first aid facilities to the Provider, where required.

 

The Owner otherwise warrants that it will:

 

5.2.            provide true, accurate and clear instructions to the Provider about the Works required and, failing that, it will agree to and accept the Provider’s supply of standard range materials, products, goods and services;

 

5.3.            ensure the Site is safe for the Provider to enter and will restrain any pets or animals before the Provider attends to carry out Services or Works at the Site;

 

5.4.            advise the Provider of the precise location of all known asbestos or hazardous materials on the Site and clearly mark the same, noting that such asbestos and hazardous materials shall at all times be the Owner’s responsibility;

 

5.5.            ensure that the Site is clear, unobstructed and tidy so that the Provider may carry out its Works by doing all things necessary including moving furniture and any other items in the workspace for the Provider to deliver the Works;

 

5.6.            respond quickly and in writing to any requests the Provider makes for directions, variations or decisions;

 

5.7.            be responsible for coordinating all relevant deliveries related to the relevant job, as the Provider will be relying on true and accurate information provided by the Owner to ensure the timely delivery of any materials required; 

 

5.8.            promptly and fully inform the Provider about all matters that are likely to affect the performance of the Work or the Owner’s obligations under the Contract;

 

5.9.            pay all fees and charges in respect of the provision of any services such as electricity, gas, sewerage and water in connection with the Site, or as provided by the Provider by way of amenities and facilities, apart from the standard connection fees for sewerage and water services only;

 

5.10.        extend the date for Practical Completion for any fair and reasonable request for an extension of time if a delay is caused by any circumstance outside the control of the Provider including but not limited to any Force Majeure event, adverse weather events, and also physical conditions on the Site or its surroundings, including artificial things which differ materially from the physical conditions which should reasonably have been anticipated by an experienced, prudent and competent Provider engaged in respect of works of a similar nature to the Works if it had done those things such a Provider should reasonably have done in preparing its Order or Quote (Latent Conditions);

 

5.11.        accept that where a delay is caused by circumstances as set out above, then the Provider is entitled to claim loss or expense resulting from the delay from the Owner;

 

5.12.        fully indemnify the Provider from all loss, costs and damages suffered by the delay caused by circumstances set out above;

 

5.13.        provide all weather access to the Site;

 

5.14.        not discuss matters relating to the Work, or give any directions to, any of the Provider’s subcontractors, employees or suppliers;

 

5.15.        comply with any other reasonable requirements of the Provider to facilitate performance of the Work; and

 

5.16.        where the Owner is a business or company, the Owner shall give the Provider not less than five (5) business days’ prior written notice of any proposed change of ownership of the Owner and/or any other change in the Owner’s details (including but not limited to, changes in the Owner’s name, address, contact phone numbers, email addresses, ABN, ABN or business practice).

 

6.1.            The Provider warrants that it will:

 

6.1.1.           carry out the Work in accordance with the Contract and the Contract documents in a proper and workmanlike manner, using suitable materials;

 

6.1.2.           ensure that the Work is carried out safely and is properly supervised by a Registered Building Work Supervisor;

 

6.1.3.           comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety (WHS) laws relating to the relevant industry and any other relevant standards or legislation to the best of its abilities;

 

6.1.4.           ensure that any claims under contractual warranties under these Terms, the Australian Consumer Law and statutory implied guarantees and warranties are addressed by way of repairs, funds or replacements within a reasonable time frame; and

 

6.1.5.           obtain (at the expense of the Provider) all licenses, permits and approvals that it is personally required to hold for the carrying out of the Works, and expressly excluding all permits and approvals required from relevant authorities in connection with any development, the land, the Premises or otherwise.

Demolition and Materials

 

7.1.            All materials demolished by the Provider in the course of the Work become the property of the Owner and are to be cleared from the Site, unless stated otherwise on the relevant Quote or Order.

 

7.2.            The Owner accepts that machinery and tools used by the Provider in the undertaking of Services may generate dust, smoke or dirt. The Provider recommends that any property or equipment belonging to the Owner is covered.

 

7.3.            The Owner acknowledges that the Provider will make all reasonable efforts to clean a work area, however the Owner accepts that the Provider may not remove all dirt, dust or other rubbish. The Provider does not accept liability for such removal.

 

7.4.            If agreed in writing with the Provider, the Owner may supply materials, goods or equipment to be included in the Work. Should the Owner supply its own materials, goods or equipment for the Works, the Provider shall not be responsible for the quality of such materials or their suitability for the Works.

 

7.5.            If the Provider considers the Owner’s materials, goods or equipment to be unsuitable, the Provider must tell the Owner in writing why and ask the Owner for a direction.

 

7.6.            If the Owner still wants the unsuitable materials, goods or equipment to be used, the Provider must use them in the Work unless the Provider reasonably believes that doing so would put the health or safety of any person at risk.

 

7.7.            If the Provider uses unsuitable materials, goods or equipment in the Work at the Owner’s direction, the Owner takes all responsibility for any delays, defects or additional costs as a result of the materials, goods or equipment being unsuitable. Any warranties provided by the Provider may be adversely affected by the use of the unsuitable materials, goods or equipment.

 

7.8.            If the Owner fails to supply materials, goods or equipment by the time the Provider needs them, the Provider may obtain similar materials, goods or equipment for use in the Work.

 

7.9.            The extra cost to the Provider of supplying similar materials, goods or equipment will be a Variation to the Contract.

 

7.10.        Except where the contract documents call for or require the use of specific materials, the Provider shall use materials that reasonably match those materials, wherever possible.

 

7.11.        All materials supplied by the Provider in the Work will remain the property of the Provider until the Owner pays for that part of the Work.

 

7.12.        The Provider is entitled to service notice of intention to exercise lien pursuant to section 12A(1) of the Building and Construction Industry Security of Payment Act 2002 (SA) over all supplied unfixed plant/materials in connection with carrying out the Works under the agreement, in addition to any other rights the Provider may have.

 

Underground Services

 

7.13.        In relation to any underground services (in that the surface of the ground is to be broken) the Provider may be required to first engage a third-party to ensure the safety of such activity with the prior consultation of the Owner. The Provider reserves the right to engage such third-party provider ‘service locator’ and on charge the Owner for that service, which will constitute a Variation.

 

7.14.        Prior to Work commencing, the Owner must advise the Provider of the precise location of any underground services and clearly mark the same. These services include, but are not limited to, electrical, gas, sewer and pumping services, sewer connections, sludge mains and water mains, irrigation pipes, telephone cables, fibre optic cables, oil pump mains and any other services that may be on that location.

 

7.15.        Whilst the Provider will take all reasonable care to avoid damage to any underground services, the Owner accepts and agrees to indemnify the Provider in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses herein.

 

Excavation Works and Concrete Works

 

7.16.        Unless otherwise stated in writing by the Provider, the Price or quoted price in respect of all digging, excavation, dewatering and similar works (Excavation Works) is based on the soil or ground being clean and not dense (e.g. clay soil) or rocky (Unfavourable Soil).

 

7.17.        If the Provider encounters Unfavourable Soil whilst undertaking the Services, then the Provider may at its discretion:

 

7.17.1.       delay or extend the date that Services are due to be completed; and

 

7.17.2.       charge an added fee or cost to cover the cost in respect of the additional work and time required to undertake the Services (including the Excavation Works) by providing the Owner with a variation.

 

7.18.        Unless otherwise stated in writing by the Provider, the Price does not include the cost to undertake:

 

7.18.1.          Shale excavation;

7.18.2.          Trench shoring;

7.18.3.          Tree or root removal;

7.18.4.          Dewatering or supportive work such as pier and beams filled from the ground up;

7.18.5.          Concrete cutting or drilling or similar works (Concrete Works); or

7.18.6.          Landscaping works.

 

7.19.        The reinstatement of driveways, footpaths, court paving, gardens, lawns and similar areas will be in addition to the price quoted in any Order or Quote, unless stated otherwise.

 

7.20.        Any quoted price in respect of Concrete Works is based on a concrete thickness of 100mm; and

 

7.21.        If the Provider encounters a concrete thickness of greater than 100mm whilst undertaking Concrete Works then the Provider may (in its sole discretion) charge an additional fee or cost to cover the cost in respect of the additional work, equipment or time required to undertake such Concrete Works.

 

7.22.        The Owner acknowledges that the presence of plant or tree root growth and/or blockages may indicate damaged pipe work and therefore where the Provider is requested to merely clear such blockages, the Provider can offer no guarantee against reoccurrence or further damage. In the event of collapse during any pipe clearing process, the Provider will immediately advise the Owner of the same and shall provide the Owner with an estimate for the full repair of the damaged pipe work.

 

Deposits for Commercial Works

 

8.1.            If the Price is under $3,000.00, a deposit of $1,000.00 must be paid from the Owner to the Provider on or before the Commencement Date.

 

8.2.            If the Price exceeds $3,000.00, the Owner must pay a deposit of thirty-five percent (35.00%) of the total Price or the cost of the materials (whichever is the greater) on or before the Commencement Date.

 

Deposits for Domestic Works

 

8.3.            If the Price is under $20,000.00, a deposit of $1,000.00 must be paid from the Owner to the Provider on or before the Commencement Date.

 

8.4.            If the Price exceeds $20,000.00, the Owner must pay a deposit of five percent (5.00%) of the total Price on or before the Commencement Date.

 

Lump Sum Payment 

 

8.5.            If the Price is payable in a lump sum, the Owner will pay it as indicated on invoices or Orders provided by the Provider to the Owner in respect of the Works performed or Goods supplied.

 

Progress payments and payment claims

 

8.6.            If the Price is payable by progress payments, the Owner agrees to pay it in the manner set out in Schedule A.

 

8.7.            The Provider is entitled to progress payments from the Owner pursuant to the Act.

 

8.8.            The Provider is entitled to issue payment claims to the Owner pursuant to the Act.

 

Failure to pay progress payment

 

8.9.            If the Owner does not pay a Progress Payment, and or Payment Claim, the Provider reserves the right to:

 

8.9.1.           Charge interest at the rate of simple interest of 10% per annum in accordance with this agreement;

 

8.9.2.           halt any further work until such time as the outstanding payment is forthcoming without incurring any penalty;

 

8.9.3.           exercise a lien over unfixed plant and materials supplied by the Owner;

 

8.9.4.           recover the unpaid portion of a claimed amount as a debt due in Court;

 

8.9.5.           make an adjudication application; or

 

8.9.6.           serve notice on the Owner of the Provider’s intention to suspend carrying out Works or supply Goods and Services.

 

8.10.        Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Act.

 

8.11.        The Owner also agrees that the Provider is entitled to serve notice on the Owner of the Provider’s intention to suspend work under the Act where:

 

8.11.1.       the Owner fails to provide a payment schedule to the Provider and fails to pay the claimed amount by the due date on any Payment Claim;

 

8.11.2.       the Owner provides a payment schedule to the Provider where the Scheduled Amount is less than the Claimed Amount; or

 

8.11.3.       the Owner fails to pay an amount on the date determined by the Adjudicator.
 

8.12.        The Owner’s obligation to pay the Provider pursuant to the Act survives termination or cancellation of this Agreement.

 

8.13.        The Owner accepts that email is a valid format to receive any documents under the Act, including but not limited to Payment Claims, Progress Payment claims, an application for adjudication, and mandatory notices.

 

8.14.        Where a progress claim is disputed, no payment schedule is provided, or payment is not made in accordance with a payment schedule by the relevant due date, the person who has served the payment claim can serve a notice of intention to apply for adjudication.

 

Interest

 

8.15.        The Owner will be charged interest on money not paid on time at the rate agreed pursuant to Schedule A.

 

8.16.        Progress payments are calculated according to the Provider’s terms and conditions including but not limited to quotes, variations, proposals and or invoices.

 

Minimum Service Charge

 

8.17.        The Provider shall charge a minimum Service Charge in accordance with the Provider’s relevant schedule or rates as set out under Schedule B and updated from time to time.

 

8.18.        Service Charges may apply for same day, emergency or urgent jobs, and will be in additional to any equipment, material and labour charges.

 

Provisional Cost Items

 

8.19.        A provisional cost (PC) is used to determine the cost of a specific item that is yet to be determined. A PC is then allowed for the purchase of the item. Where the actual cost of the item is greater than the contract sum under this agreement, the excess amount together with the Provider’s margin shall be added to the agreement price. Where the actual cost is less than the contract price under this agreement, the difference shall be deduced from the agreement price.

 

General Price

 

8.20.        The Price shall otherwise be the amount indicated on the Quote or Invoice.

 

8.21.        Should there be no price indicated on the Quote, the Price shall be the price of the Works as set out in the most recent price list provided from the Provider to the Owner as at the date of the Contract, and in accordance with Schedule B (if applicable).

 

8.22.        The Provider will invoice the Owner following the delivery of each Quote, with such invoice clearly referencing the Quote, the commencement date of the Contract, the relevant payment terms and any other relevant documents that the Owner may reasonably require.

 

Payment

 

8.23.        The Owner shall pay to the Provider, by way of its nominated bank account which details must be provided in writing to and verified with the Provider, all Prices and fees properly invoiced pursuant to these Terms.

 

8.24.        Payment must only be made either by cash on-the-day, electronic/on-line banking or credit card (plus any relevant surcharges) or by any other method as agreed to between the Owner and the Provider.

 

8.25.        The Owner agrees that payment in any other form will be at the sole responsibility and cost of the Owner, including the payment of additional fees and charges. 

 

8.26.        Receipt by the Provider of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Provider’s rights and ownership in relation to the Works, Services and Goods, and this agreement, shall continue.

 

8.27.        All amounts payable to the Provider by the Owner in connection with these terms may not be set-off, counterclaimed, withheld or deducted in respect of any sum payable under or in connection with this agreement by the Owner to the Provider.

 

8.28.        The Provider may, in its discretion, allocate any payment provided to the Owner towards such invoice that the Provider determines.

 

8.29.        In the Event of Default by the Owner, the Provider may re-allocate payments previously paid. In the absence of any payment allocation by the Provider, payment will be deemed to be allocated in such manner that preserves the maximum value of the Provider’s Purchase Money Security Interest (as defined in the PPSA) in the Works (if any).

 

8.30.        Unless expressly stated otherwise, any sum payable, under this agreement has been determined without regard to GST, in which case, GST will be payable under this clause.

 

9.1.            The Provider reserves the right to change the Price:

 

9.2.            if the Owner requests a variation (by way of written request);

 

9.3.            an unforeseeable problem occurs or is discovered at any point during the term of this agreement, requiring a variation to the Order or job;

 

9.4.            if a variation is made; or

 

9.5.            in the event of increases to the Provider in the cost of labour, equipment, Goods or Services which are beyond the Provider’s control,

 

 the Provider will give the Owner a written variation document detailing the variation, the amended Price, the estimated time to undertake the variation, and the likely delay (if any) and require written acceptance of the variation before commencing work on the variation.

 

9.6.            Prices are quoted on the basis that service(s) will be performed during the Provider’s normal business hours referred to in clause 10.2.

 

9.7.            Work required by the Owner or otherwise needed outside of these hours may increase the quoted price and be subject to after hours / emergency call-out rates.

 

9.8.            The Owner must approve and sign the written variation document before the Provider can carry out such variation.

 

9.9.            If the Owner does not wish to address the circumstances identified or the Provider determines that such circumstances cannot be rectified or addressed to its satisfaction by a variation to the Order, then the Provider may terminate this agreement by written notice to the Owner.

 

10.1.        Service is taken to have occurred at the time that:

 

10.1.1.       the Provider (or their nominated carrier) deliver the Goods or Services to the Owner’s nominated address for the purposes of delivery, even if the Owner is not present at the address;

 

10.1.2.       the Provider undertakes the Works at the Owner’s nominated address, either in full or in part over one or more days, even if the Owner is not present at the address (as may be agreed between the parties); or

 

10.1.3.       any other method of service occurring, as agreed in writing by the parties to this agreement.
 

10.2.        Although the time, date and location for Works is to be agreed between the parties, the normal business hours of the Provider for the Delivery of the Works is between the hours of Monday to Friday, 8:00am – 4:00pm, or a time as instructed by the Provider (Business Hours).

 

10.3.        In the event that the Owner is unable to receive the Works, or the Provider is unable to carry out the Works as arranged (for any reason whatsoever including, but not limited to, the Provider’s inability to access the site due to obstruction, change of Owner instructions, cancellations, rescheduling, the Provider having been provided with the wrong materials and being unable to commence the Work, and so forth) then the Provider shall be entitled to charge a reasonable fee for reattendance, mobilisation, restocking of Goods or equipment and/or storage of Goods or equipment in accordance with its Schedule of Rates (Schedule B), which may be updated from time to time.

 

10.4.        The Provider may undertake the Works in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of this agreement.

 

10.5.        Any time or date given by the Provider to the Owner is subject to change. The Provider will not be liable for any loss or damage incurred by the Owner as a result of Service being late where completion is delayed by an event beyond the Provider’s control, including but not limited to any failure by the Owner to:

 

10.5.1.       confirm their selection of the Works;

10.5.2.       have the Site ready for the Works; or

10.5.3.       notify the Provider that the Site is ready.

 

10.6.        The Provider shall not be liable for any loss or damage during the process of delivery, caused by the Works or the Owner to any nominated address (including, without limitation, damage to any pathways, driveways and concreted or paved or grassed areas) unless due to the direct negligence of the Provider.

 

10.7.        The Provider may at its discretion notify the Owner that it requires to store at the Site its materials, equipment, fittings, appliances, plant and tools required or the Works, in which event the Owner shall supply the Provider with a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that such items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Owner’s responsibility.

 

10.8.        The Owner acknowledges and agrees that time is of the essence in respect of this clause.

 

11.1.        When, in the reasonable opinion of the Provider, Practical Completion of the Work has been achieved, the Provider must notify the Owner in writing.

 

11.2.        Unless the Owner has signed off and approved Practical Completion of the Works on-site with the Provider, the Owner must inspect the Work with the Provider within five (5) days of the Provider’s written notification. If the Owner does not agree that the Work has achieved Practical Completion, the Owner must notify the Provider in writing of the reasons, including by providing details of any defective or incomplete Work.

 

11.3.        The Provider must assess any items identified by the Owner and take any action that the Provider considers to be reasonably necessary to bring the Work to Practical Completion. Once the Provider has done this, the Provider may, acting reasonably, make a final declaration as to Practical Completion being reached, which, subject to the termination clauses herein, will be binding on the parties.

 

11.4.        The Work is the responsibility of the Owner from the Date of Practical Completion or from the Date that the Owner takes over the Work, whichever is earlier.

 

11.5.        If the Owner takes possession, uses part of the Work without the written consent of the Provider or if the Works have been interfered with, touched or tampered with in any way whatsoever by a third-party, the Work shall be deemed to have reached Practical Completion on the date possession is taken or use or interference occurs.

 

12.1.        Risk of damage to or loss of the Works will not pass to the Owner until and upon Delivery and/or pick-up from the Owner by the Provider.

 

12.2.        If any of the Works are damaged or destroyed following Delivery but prior to ownership passing to the Owner, the Provider is entitled to receive all insurance proceeds payable for the Works. The production of these terms and conditions by the Provider is sufficient evidence of the Provider’ rights to receive the insurance proceeds without the need for any person dealing with the Provider to make further enquiries.

 

12.3.        Any advice, recommendation, information or assistance provided by the Provider in relation to incidental goods or services supplied is provided in good faith based on the Provider’s own knowledge and experience and shall be accepted without liability on the part of the Provider. It shall be the responsibility of the Owner to confirm the accuracy and reliability of the same.

 

12.4.        For the avoidance of doubt, the Provider expressly does not provide any advice with respect to designs, engineering or the like, and any such opinions are solely provided based on the Provider’s experience and reliance on any information as provided by the Owner.

 

12.5.        Where the Provider gives advice, information or recommendations to the Owner, its agents or representatives regarding the Works, and such advice, information or recommendations are not acted upon by the Owner, the Provider shall not be liable in any way whatsoever for any damage or loss suffered by the Owner and any defects, warranties, return or re-supply clauses will be immediately revoked.              

 

12.6.        Title shall pass from the Owner to the Provider upon its confirmation of Delivery of the Works, but is subject to:

 

12.6.1.       the Owner paying the Provider all amounts owing to the Provider and the same being honoured, cleared or recognised by the Provider; and

 

12.6.2.       the Owner meeting all other obligations due by the Owner to the Provider in respect of all contracts between the Provider and Owner.

 

13.1.        The Defects Liability Period begins on the date of Practical Completion and continues for the duration set out in Schedule A.

 

13.2.        During the Defects Liability Period, if the Owner believes the Work is defective, the Owner may require the Provider to rectify defects provided the Owner first:

 

13.2.1.       provides written notice to the Provider at the address listed on this the Contract within no later than ten (10) business days of becoming aware of the alleged defect;

 

13.2.2.       permits the Provider reasonable access to the premises to investigate and if applicable, repair the alleged defects; and

 

13.2.3.       provides the Provider with reasonable time to investigate and determine whether the matters notified are defects.

 

13.3.        To the extent reasonably possible, the Provider will fix defects within sixty (60) days of completing the investigation or in the timeframe as agreed between the Parties, subject to the availability of material and equipment and any relevant public holidays.

 

13.4.        If the Provider does not fix the defects, upon the Owner first giving the Provider in writing a further reasonable opportunity to do so, the Owner may arrange for the defects to be rectified and the Provider will pay the cost.

 

13.5.        The Owner must give the Provider reasonable access during its working hours to undertake any work required.

 

13.6.        To avoid doubt:

 

13.6.1.       for the duration of the Defects Liability Period, the Provider provides a warranty against defects caused by the Provider’s workmanship only of which is twelve (12) months from the date of such Works;

 

13.6.2.       the Provider will not be liable to the Owner in any manner, whether arising from negligence or otherwise regarding any breach, failure, defect or claim which has not occurred and been notified to the Provider before the expiration of the Defects Liability Period;

 

13.6.3.       after the expiry of the Defects Liability Period to the extent permitted by Law, the Provider gives no other warranty; and

 

13.6.4.       warranties given by suppliers of materials and products used in the Work are given by the supplier of those materials and products and any claims for defective materials and products must be made directly to the applicable supplier and in accordance with that supplier’s warranty or manufacturer’s warranty.

 

13.7.        Any work carried out by other trades or persons other than the Provider or the Provider’s approved trades are void to the fullest extent permitted by law possible against any warranty provided by the Provider.

 

13.8.        Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumer Act 2010 (CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non- Excluded Guarantees”).

 

13.9.        If the Owner is a consumer within the definition of the CCA, the Provider’s liability for any defect or damage during the Service is limited to the value of any express warranty provided to the Owner by the Provider and those which are set out herein this Agreement.

 

13.10.    The Provider shall otherwise not be liable for any defect, harm, loss or damage suffered (consequential or not) by the Owner or any third party which may be caused or partly caused by or arise as a result of:

 

13.10.1.   the Owner failing to disclose any relevant or critical information that would otherwise be relevant and required for the Owner to carry out the Works;

 

13.10.2.   the Provider’s reliance on the accuracy of any plans, specifications and other information provided by the Owner to carry out the Works to provide a quote an undertake the Works;

 

13.10.3.   the Owner failing to properly maintain the Site area (during and/or after the Provider’s Works) or store any relevant Goods, material or equipment;

 

13.10.4.   the Owner using the Services or Goods for any purpose other than that for which they were designed;

 

13.10.5.   the Owner continuing use or attempting to repair any defect or damage after it became apparent or should have become apparent to a reasonably prudent person;

 

13.10.6.   interference with the Works by the Owner or any third party without the Provider’s prior approval;

 

13.10.7.   the Owner failing to follow instructions, advice, procedures, recommendations, or guidelines provided by the Provider, including any instructions in respect of work, health and safety of the Site, Works, Services or Goods; or

 

13.10.8.   fair wear and tear, any accident, or act of God.

 

13.11.    The Owner is solely responsible for any fines or other notices incurred by them, relating to the Work before Practical Completion and after the Defect Liability Period.

 

13.12.    Nothing in this clause is intended to detract from the Owner’s statutory rights nor purports to modify or exclude the Non-Excluded Guarantees.

 

14.1.        The Owner charges all of its rights, title and interest (whether joint or several) in the Works (and their proceeds) previously supplied by the Owner and in all future Works (and their proceeds), and the Owner grants a security interest in all of its present and after-acquired property for the purposes of securing the performance by the Owner of its obligations under these terms and conditions.

 

14.2.        The Owner indemnifies the Provider from and against all the Provider’ costs and disbursements including legal costs incurred in exercising the Provider’ rights under this clause.
 

14.3.        The Owner irrevocably appoints the Provider and each director of the Provider as the Owner’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Owner’s behalf.

 

Personal Property Securities Act 2009 (“PPSA”)

 

14.4.        The Owner consents to registration of the security interests arising in favour of the Provider if necessary as a result of these conditions and lodgement of a financing statement in respect of the security interests with the Personal Property Securities Register, and must do everything (including obtaining consents, signing and producing documents, completing documents or procuring that they are completed, and supplying information) which the Provider considers necessary or desirable for the purposes of the PPSA including, without limitation:
 

14.4.1.       ensuring that the security interests are registered, enforceable, continuously perfected, and otherwise effective in accordance with the PPSA;
 

14.4.2.       enabling the Provider to apply for any registration, or give any notification, in connection with the security interests; and

 

14.4.3.       enabling the Provider to exercise rights in connection with the security interests in accordance with the PPSA.

 

15.1.        As security for the due and punctual payment and performance of the Owner’s obligations under this Agreement, the Owner may be required to (at the Provider’s discretion), prior to the undertaking of Services by the Provider, provide to the Provider a Guarantor to enter into this Agreement and guarantee and indemnify the Provider on any or all of the following terms:

 

15.1.1.       The Guarantor unconditionally guarantees full Payment of all money owed by the Owner under this Agreement and any ancillary documents and the observance and performance of all of the Owner’s obligations as specified in or implied by this Agreement;

 

15.1.2.       The Guarantor indemnifies and must keep indemnified the Provider against any costs, expenses, claims, liabilities, losses and damaged incurred by the Provider in respect of any default by the Owner under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;

 

15.1.3.       This guarantee covers all Works undertaken by the Provider, including Variations;

 

15.1.4.       This guarantee is in favour of the Provider and its employees, successors, assigns, heirs, executors and agents;

 

15.1.5.       This guarantee extends to claims by the Provider for breaches of material terms of this Agreement and repudiation of this Agreement and to the Provider’s reasonable legal and other expenses of seeking to enforce those obligations; and

 

15.1.6.       The Provider may require the Guarantor under this guarantee to pay to the Provider any outstanding amounts, or any other amount to compensate the Provider for any loss or damage incurred under this Agreement, without the Provider being required to institute any proceedings against the Owner in respect of such claims or breaches.

 

15.2.        The Provider’s rights against the Guarantor are not affected by:

 

15.2.1.       the death, bankruptcy or winding up of the Owner or Guarantor;

 

15.2.2.       the Owner’s liability under this Agreement, any variation or any other ancillary documents, assignments or extensions of the Agreement between the Parties; or

 

15.2.3.       any release of the Owner or any Guarantor.

 

15.3.        This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Owner, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.

 

16.1.        The Owner acknowledges and agrees that all intellectual property rights that the Provider makes, develops, conceives or is granted in the course of, or arising out of, the Works and/or the Owner’s engagement with the Provider is owned by and vests in the Provider (‘Intellectual Property’).

 

16.2.        The Owner must not infringe, use or reproduce the Intellectual Property of the Provider without the Provider’s prior written approval, except in the proper provision of the services and Works and performance of its duties under this agreement. 

 

16.3.        The Owner must not infringe any rights in any intellectual property of third parties in performing its obligations under this agreement. 

 

17.1.        The Owner is to notify its insurers of the Provider’s interests pursuant to this agreement and shall cause those interests to be noted on the insurance policies, together with a provision to the effect that, if any claim is brought or made by the Provider against the Owner in respect of which the Owner would be entitled to receive indemnity under any of the insurance policies, the relevant insurer will indemnify the Provider directly against such claim and any costs and expenses in respect of such claim. If the relevant insurer does not indemnify the Provider, the Owner must use its insurance monies received by it to indemnify the Provider in respect of any claim and must make good any deficiency from its own resources.

 

18.1.        The parties shall have personal liability for, and hereby irrevocably indemnify and covenant to hold one another harmless from and against, any and all liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs on a full indemnity basis, and all other reasonable professional costs and expenses) suffered by the other party as a result or in connection with:

 

18.1.1.       any breach of this agreement or negligent performance or tortious conduct under the Contract;

 

18.1.2.       any claims made by a third party arising out of or in connection with the supply of Works, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by that party, its employees, agents or subcontractors;

 

18.1.3.       any claims made for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Works, to the extent that the claim is attributable to the acts or omissions of the relevant party, its employees, agents or subcontractors;

 

18.1.4.       any claim made by a third party for death, personal injury or damage to property arising out of or in connection with defects in Works, to the extent that the defects are attributable to the acts or omissions of that party, its employees, representatives, agents or subcontractors. 

 

19.1.        If the Owner owes the Provider any money (whether by set off or otherwise), the Owner shall indemnify the Provider from and against all costs and disbursements incurred by the Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a full indemnity basis and any disbursements, filing fees and court fees incurred to recover the debt).

 

19.2.        Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of ten (10%) per annum pro rata, after as well as before any judgment.

 

19.3.        Without prejudice to any other remedies the Provider may have at law or under this agreement, if at any time the Owner is in breach of any obligation under these Terms or otherwise an Event of Default has occurred in respect of the Owner, and whether or not the Owner has accepted the Works, the Provider may:

 

19.3.1.       immediately pause or suspend the performance of this agreement;

 

19.3.2.       terminate this Agreement and the Contract;

 

19.3.3.       refuse to make any subsequent Order of the Works which the Owner attempts to make;
 

19.3.4.       recover from the Owner any costs incurred by the Provider in obtaining substitute goods from a third party;

 

19.3.5.       claim damages for any other costs, loss or expenses incurred by the Provider which are in any way attributable to the Owner’s failure to carry out its obligations under the Contract.

 

19.4.        This clause also applies to any repaired or replaced Works supplied by the Provider.

 

19.5.        If the Owner does not comply with its obligations under this agreement within seven (7) days of being notified in writing by the Provider of such event, the Provider may immediately terminate this agreement by giving notice to the Owner and the Owner must pay to the Provider, where applicable:

 

19.5.1.       any costs that the Provider has incurred as a result of terminating the agreement; and
 

19.5.2.       any costs that the Provider has incurred with the supply and/or Delivery of those Works.
 

19.6.        Without prejudice to other remedies at law or under this agreement, the Provider shall be entitled to cancel or reject all or any part of the Order of the Owner which remains unfulfilled and return such Works to the Owner at the Owner’s own risk and expense if:
 

19.6.1.       in the Provider’ reasonable opinion, the Owner will be unable to fulfil its obligations under these Terms;

 

19.6.2.       the Owner is involved in an Insolvency Event, convenes a meeting with its creditors or proposes or enters an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

 

19.6.3.       a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Owner or any asset of the Owner.

Remedies

 

19.7.        Each party acknowledges and agrees that, in the event of any breach by the other party, damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies it may have, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with the recovery of costs.

 

20.1.        Without prejudice to any other remedies the Provider may have, if at any time the Owner is in breach of any obligation under these Terms, the Provider may suspend or terminate payment and performance of its obligations under this agreement. The Provider will not be liable to the Owner for any loss or damage the Owner suffers because the Provider has exercised its rights under this clause.

 

20.2.        The Provider may cancel any contract to which these Terms apply or cancel Delivery of Works at any time before the Works are delivered by giving at least seven (7) days written notice to the Owner. The Provider shall not be liable for any loss or damage whatsoever arising from such cancellation.

 

20.3.        The Owner may cancel this agreement or any Order, with at least seven (7) days written notice to the Provider or any time prior to material and/or equipment being ordered by the Provider (whichever is the earlier).

 

20.4.        Notwithstanding notice being received in accordance with clause 20.3, in the event that the Owner cancels Delivery of the Works, the Owner shall remain liable for any and all loss incurred (whether directly or indirectly) by the Provider as a result of the cancellation (including, but not limited to, any loss of profits and fees for alternative Works, in addition to all re-stocking fees, mobilisation fees, storage fees, and Goods ordered and incurred by the Provider for the relevant job).

 

20.5.        In the event that the Owner does not cancel the agreement in accordance with clause 20.3, the Owner will, in addition to the costs above, be further liable for the following cancellation fees:

 

20.5.1.       Within 72 hours – 15% of the total cost of the Works;

20.5.2.       Within 48 hours – 25% of the total cost of the Works;

20.5.3.       Within 24 hours – 50% of the total cost of the Works; or

20.5.4.       On the day – Full cost of the service, and any additional, reasonable fees for time and travel incurred by the Provider. The above percentages do not include an administration fee for cancellation.

 

20.6.        If less than 24 hours of notice is given, the Provider reserves the right to charge an administration fee, and any reasonable costs for time and travel incurred by Provider, including the right not to refund any deposit (if applicable).

 

20.7.        The Provider reserves the right to waive the cancellation fee in the event of an unavoidable emergency.

Termination for breach

 

21.1.        The Provider may immediately terminate this agreement by notice to the Owner if an Event of Default occurs in respect of the Owner.

 

21.2.        If the Provider commits any material or persistent breach of this agreement, the Owner must provide the Provider with a notice of breach in writing. If the Provider fails to remedy the breach within twenty-five (25) business days after the date of its receipt of such notice, the Owner may terminate this agreement with immediate effect upon providing the Provider with a further notice of termination in writing.

 

Termination with notice

 

21.3.        The Owner may, without limitation to its rights under clause 21.2, terminate this agreement at any time by at least seven (7) days written notice to the Provider

 

21.4.        Notwithstanding clause 21.3, should the Owner terminate this agreement and Works have commenced or an order of Goods has been dispatched, the Owner remains liable to pay the Provider for all Works, Services or Goods provided up to and including the date of termination, in addition to any loss of profits and fees for alternative Works and all re-stocking fees and Goods ordered and incurred by the Provider for the relevant job.

 

21.5.        The Provider may, without limitation to its rights under clause 20.1, terminate this agreement at any time by giving seven (7) days’ written notice to the Owner. The Owner may waive all or part of such notice period.

 

22.1.        If any dispute concerning this Contract (called a ‘Dispute’) shall arise between the Provider and the Owner in connection with the subject matter of the Contract then either party may give to the other written notice within ten (10) business days under this Contract.

 

22.2.        Either party may refer the dispute to arbitration by notifying in writing the other party.
 

22.3.        Whoever gives notice of their intention to refer the dispute to adjudication must give a copy of the notice an organisation that is authorised by the Office of the South Australian Small Business Commissioner to nominate adjudicators under the Act.

 

22.4.        The adjudicator will notify both the Provider and the Owner of their appointment and will conduct the arbitration in accordance with applicable Laws and the adjudication rules.

 

22.5.        The adjudicator will decide who will pay the adjudicator costs and any other costs of adjudication and the parties are liable to pay those costs in the proportions decided by the adjudicator.

 

22.6.        Nothing in this clause prejudices the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.

 

22.7.        Nothing in this clause is intended to contract out of any provision of the Act.

 

23.1.        To the maximum extent permitted by law, the parties shall expressly exclude liability for any damage and/or delay in the performance of any of its obligation under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the parties.

 

23.2.        In the event that such delay or non-performance continues for ten (10) business days, the party not affected may terminate the Contract by giving five (5) business days written notice to the affected party.

 

24.1.        The parties must keep all confidential information confidential including, but not limited to, all information relating to the Works, a party, customer, Owners, suppliers, distributors, partners of the party and/or any of the business or financial affairs of them that is regarded as confidential (‘Confidential Information’).

 

24.2.        The parties agree not to use or exploit any Confidential Information in any way except in the proper performance of these Terms (including but not limited to the supply of Works to the Provider), or disclose or make available by Confidential Information to any third party, nor copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of these Terms, and ensure that any and all authorised third-party discloses comply with the obligations in this agreement.

 

24.3.        The disclosing party shall be responsible for, and liable to the discloser, in respect of, the actions or omissions of any and all of its authorised third-party discloses in relation to Confidential Information as if they were the actions or omissions of the disclosing party.

 

24.4.        The obligations in this clause will not apply to any Confidential Information is required by law or court order to be disclosed.

Notices

 

25.1.        A notice given to a party under this agreement must be in writing and addressed to the appropriate party.

Severability

25.2.        If a provision of this agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

 

25.3.        If a contract constituted by this agreement is a ‘consumer contract’ or ‘small business contract’ (each as defined in the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and a term of that contract would, but for this clause be ‘unfair’ (as defined in section 24(1) of the ACL), the Owner may only apply or rely upon that term to the extent that doing so is reasonably necessary to protect the Owner’s legitimate interests.

Survival

25.4.        The obligations of the parties with respect to Confidentiality, Intellectual Property, Liability and Remedies and Termination survive the termination of this agreement.

Limitation of Damages

25.5.        Except as otherwise provided for in these terms and conditions, the Provider shall be under no liability whatsoever to the Owner for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach the Provider of this Agreement (alternatively the Provider’s liability shall be limited to damages which under no circumstances shall exceed the Price).

Non-disparagement

25.6.        Each party must not 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 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.

Waiver

25.7.        The Owner may waive any right it may otherwise have to rely on endorsed upon, delivered with, or contained in any documents of the Owner that is inconsistent with these Terms.
 

25.8.        No failure or delay by a party to exercise a right or remedy under this agreement or by law shall constitute a waiver of that right or remedy.

Subcontracting

25.9.        The parties must not subcontract their rights or obligations under this Agreement or Contract without the prior written consent of the other party.

Assignment

25.10.    The parties may not assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of both parties.

Amendment

25.11.    This agreement can be amended at any time by both parties if the amendment is signed and in writing.

Entire Agreement

25.12.    This document contains a summary of the Provider’ full Terms.

 

25.13.    These Terms embodies the whole agreement between the parties and all previous dealings, representations and arrangements are hereby excluded and cancelled.

 

25.14.    The Owner accepts that, in accepting the Provider’s Order, they accept these full Terms.

 

Counterparts

 

25.15.    This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.

 

25.16.    Delivery of an executed counterpart of this Contract by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

 

Electronic Execution

 

25.17.    The parties agree and acknowledge that this agreement may be signed electronically, and any electronic signature executed by the parties shall be considered as valid and binding as if it were an original handwritten signature.

 

Third Parties

 

25.18.    This 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.

 

Further Assurance

 

25.19.    Each Party to this agreement must at the request and at the expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.

 

Governing Law and Jurisdiction

 

25.20.    This 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 South Australia, Australia.

 

 

SCHEDULE B

SCHEDULE OF RATES APPLICABLE