Standard Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
In this agreement and in any instrument created pursuant to or in accordance with it, unless the context otherwise requires:
“Business Day” means any day except Saturday or Sunday or a day that is a public or bank holiday in Queensland;
“Contract Documents” includes the Quotation and all drawings, plans and specifications and all other information provided by the Customer to the Contractor in relation thereto;
“Commencement Date” means the date which is reasonable time after given notice of access to site and before unfettered access is given;
“Completion Date” means the date of completion of the Works under the Contract;
“Contract” means the contract to carry out the Works between the Customer and the Contractor created by the acceptance of the Quotation by the Customer;
“Defects Liability Period” means the period as set out in the Quotation commencing on the date for Practical Completion;
“Deposit” means an amount payable by the Customer to the Contractor immediately upon formation of the Contract;
“Dispute Resolution” means the process of resolving disputes between the parties set out in clause 27.
“GST Act” means the Act titled A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time;
“GST” has the meaning given to this term by the GST Act;
“Guarantors” means the person executing this document as Guarantor
“Order” has the meaning given to this term by clause 3.3;
“Practical Completion” means the stage when the Works have been completed in accordance with the Contract and all relevant statutory requirements either without any omissions or defects or apart from minor omissions or minor defects;
“Price” means the price to be paid by the Customer to the Contractor for the performance of the Works in accordance with the terms of the Contract;
“Prime Cost Item” means an item, including, for example, a fixture or fitting –
(a) that has not been selected, or the price of which is not known, when the contract is entered into; and
(b) for which a reasonable allowance for the cost of supply is to be made in the contract by the Contractor;
“Provisional Sum” is the amount that is the Contractor’s estimate of the cost of performing this part of the Works, for which the Contractor, after making all reasonable enquiries, can not determine a definite amount at the time the Contract is entered into;
“Retentions” means the proportion or percentage the Customer is entitled to retain from the progress payments specified in the quotation, but which shall not exceed 10% of any progress claim nor 5% of the total contract price and which may be substituted, at the election of the Contractor with a bank guarantee in lieu thereof and which shall be reduced to //*// on the date of Practical Completion to no more than 2.5% of the Price;
“Servants” means and includes servants, employees, agents, contractors and sub-contractors;
“Site” means where the works under the Contract are carried out as specified in the Quotation;
“Works” means the work to be carried out under the Contract including Variations and any materials and equipment to be consumed in effecting the Works or to be incorporated into the Site;
“Written” means communication in written form including by facsimile, email, SMS (Short Message Service) or similar electronic means;
“Quotation” means the written quotation given by the Contractor to the Customer which may specify the scope of the Works, any Deposit, any Defects Liability Period, any Retentions, the Commencement Date, Completion Date of the Works and the Price of the Works and which is deemed to incorporate these Standard Terms and Conditions;
“Variation” means to vary the Works by:
(a) carrying out additional work;
(b) omitting any part of the Works; or
(c) changing the scope of the Works.
In this agreement and in any instrument created pursuant to or in accordance with this agreement, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 a reference to a person includes an individual and a corporation, partnership, joint venture, association, authority, trust, State or Government and vice versa;
1.2.3 a person includes the legal personal representatives, successors and assigns of that person;
1.2.4 a reference to any gender includes all genders;
1.2.5 a reference to a recital, clause, schedule, annexure, appendix or exhibit is to a recital, clause, schedule, annexure, appendix or exhibit of or to this agreement;
1.2.6 a recital, schedule, annexure, appendix or exhibit or description of the parties forms part of this agreement;
1.2.7 a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
1.2.8 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
1.2.9 where an expression is defined anywhere in this agreement it has the same meaning throughout;
1.2.10 a reference to “dollars” or “$” is to an amount in Australian currency.
All headings throughout this agreement have been inserted for the purpose of ease of reference only and will not define, limit or affect the meaning or interpretation of this agreement or of any instrument created pursuant to or in accordance with this agreement.
2.1 This agreement and any Contract made between the parties shall be governed by and construed in accordance with the laws of Queensland and the parties agree to submit to the jurisdiction of the Courts of that State in all matters arising out of this agreement and any Contract made between the parties.
3. FORMATION OF AGREEMENT
3.1 The Customer may accept a Quotation within thirty (30) days of its receipt which period the Contractor may, at its option, extend.
3.2 The Contractor may, at its absolute discretion, and without incurring any liability to the Customer whatsoever, revise or withdraw the Quotation at any time before communication by the Customer to the Contractor of its acceptance of the Quotation in writing.
3.3 The Customer may accept a Quotation including by signing and returning a copy of the Quotation to the Contractor or otherwise acknowledging and agreeing to the terms of the Quotation (an “Order”).
3.4 The parties will be deemed to have formed a Contract on the terms of this Contract together with the Quotation, upon acceptance by the Customer of the Quotation.
4. DUTIES OF THE CONTRACTOR
4.1 The Contractor must carry out and complete the Works in the best trade practice and professional manner and in compliance with the terms and provisions of the Contract Documents by the Completion Date.
4.2 The Contractor may employ its Servants or any third party for the purpose of completing the Works provided such person(s) are careful, skilled and experienced in their respective trades or occupations. The Contractor will be solely responsible for any and all payments to any Servant or third party for that part of the Works performed by it.
5.1 Any person seeking a variation to the Contract shall notify the other party of the details of the required changes to the Works.
5.2 Where practicable, a variation document will be prepared by the Contractor which will:
5.2.1 be signed by both the Customer and the Contractor;
5.2.2 state the scope of the Variation;
5.2.3 state the reason for the Variation;
18.104.22.168 the change in the Price by reason of the Variation; or
22.214.171.124 where it is not practicable to state the change in the Price by reason of the Variation; or where no agreement is reached by the Customer and the Contractor as to the value of the variations, then additions shall be charged at cost (exclusive of GST) plus 15%, plus any and all GST payable with respect to the addition; and the actual cost of deletions are to be deducted with any and all GST payable with respect to the deletion;
5.2.5 State the revised Completion Date (if applicable and practicable).
5.3 The Price is to be adjusted accordingly in the next payment made after the commencement of the Works the subject of the Variation.
6. CONTRACTOR’S WARRANTY
6.1 The Contractor warrants that:-
6.1.1 all materials to be supplied for use in the Works other than those specified as excluded:
126.96.36.199 will be good and having regard to the generally accepted practices or standards applied in the building industry for the materials or the specifications, instructions or recommendations of manufacturers or suppliers of the materials, will be suitable for the purpose for which they are used; and
188.8.131.52 unless otherwise stated, are new;
6.1.2 the Works will be carried out:-
184.108.40.206 in accordance with all relevant laws and legal requirements;
220.127.116.11 in an appropriate and skilful way; and
18.104.22.168 with reasonable care and skill;
6.1.3 if applicable, each Provisional Sum has been calculated with reasonable care and skill, having regard to all the information reasonably available when the Contract is entered into (including information about the nature and location of the Site); and
6.1.4 at all times during the currency of the Contract it will hold all licences required to carry out and complete the Works.
6.2 The Contractor does not warrant the quality or performance of any materials, equipment or parts supplied or installed by the Contractor but not manufactured by the Contractor. It is the Customer’s responsibility to establish the warranty relationship with the manufacturer by ensuring that warranty cards or other registration requirements of the manufacturer are complied with.
7. PROGRESS PAYMENTS
7.1 The Customer shall pay to the Contractor the Deposit stated in the Quotation upon the formation of the Contract.
7.2 The Customer will pay the Contractor the Price by way of progress payments, calculated in accordance with clause 7.3.
7.3 The Contractor shall submit to the Customer written progress claims which may be in the form of a Tax Invoice, under the GST Act; and consist of:
7.3.1 the amount payable for Works carried out or the proportion of the Price payable where applicable and which have not previously been charged; and
7.3.2 any other amounts then payable to the Contractor.
7.4 The Customer must pay the progress claim less any Retentions within seven (7) business days of submission of submission of the progress claim.
7.5 Should the Customer neglect or refuse to pay the amount of any progress claim by the due date, then the Contractor may, at its option, with or without notice to the Customer, suspend performance of the Works until such payment has been received in full.
7.6 The Contractor shall be entitled to charge interest on any moneys not paid when due, calculated in accordance with Section 67P(3)(a) of the Queensland Building Services Authority Act 1991 (Qld).
8. INCREASED AND CANCELLATION COSTS
8.1 If, after 30 days from the formation of the Contract, the Contractor’s costs in connection with the Contract are increased as a result of the introduction of new, or changes to existing, government taxes or charges or Prime Cost Items or Provisional Sums (or under Clause 23) then the Price shall be increased to reflect such changes and the Customer shall pay the increased Price to the Contractor in accordance with the provisions of Clause 7.
8.2 If any Contract is postponed or cancelled by the Customer, then the Customer shall reimburse to the Contractor all costs and expenses actually incurred by it in relation to its preparation for undertaking the Works together with (at the election of the Contractor) an amount equivalent to the profit which the Contractor would have made had the Works not been so cancelled or postponed. In the event of any dispute as to the Contractor’s entitlements hereunder, the matter shall be referred to Dispute Resolution.
9. EXCEPTED RISKS
9.1 The Contractor shall not be liable for any delay or failure to perform its obligations under this agreement or any Contract between the parties if such failure or delay results directly or indirectly from any cause, matter or thing beyond the reasonable control of the Contractor, including but not limited to:
9.1.1 any act, default or omission on the part of the Customer, its employees and or agents or any third party carrying out work on the Site;
9.1.2 the timing of work performed or not performed on the Site by other Contractors;
9.1.3 damage by fire, explosion, earthquake, lightning, storm, flood, acts of God, civil or military authority, public enemy, war, civil commotion, strikes, labour disputes or industrial conditions;
9.1.4 electric power supply failure;
9.1.5 inclement weather;
9.1.6 unavailability of suitable materials or parts;
9.1.7 failure of transportation affecting the Contractor, its supplier or any other person company or firm;
9.1.8 Latent conditions;
9.1.9 Variations directed by the customer or required to complete the Works safely and effectively;
9.1.10 Changes in the law; or
9.1.11 Directions or delays by municipal, public or statutory authorities.
10. RISK & OWNERSHIP
10.1 Risk of loss, damage or destruction to the Works or any part thereof shall pass to the Customer as and when each part thereof is completed or installation.
10.2 The Customer has no right or claim to any interest in the materials to secure any liquidated or unliquidated debt or obligation the Contractor owes to the Customer.
10.3 The Customer cannot claim any lien over the materials.
10.4 The Customer will not create any interest in the materials in relation to any third party except as may be authorised by the Contractor.
10.5 Where the Customer is in actual or constructive possession of the materials the Customer will not deliver them or any document of title to the materials to any person except as directed by the Contractor and is in possession of the materials as a bailee of those materials and owes the Contractor the duties and liabilities of a bailee.
10.6 The property of the Contractor in the materials remains with the Contractor until the Contractor has received payment in full of the Price and any other moneys due to the Contractor under this agreement or any Contract between the parties.
10.7 The Customer is a bailee of the materials until such time as property in them passes to the Customer and this bailment continues in relation to all of the materials until the Price of the Contract has been paid in full.
10.8 Pending payment in full of the Price under the Contract, the Customer:
10.8.1 must not allow any person to have or acquire any security interest in the materials;
10.8.2 must insure the materials for their full insurable or replacement value (whichever is the higher) with any insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business and the insurance company must be notified of the Contractor’s interest in the materials.
10.8.3 must not remove, deface or obliterate any identifying plate, mark or number on any of the materials.
10.9 Despite clause 10.8, if the Customer supplies any of the materials to any person before all moneys payable by the Customer have been paid to the Contractor (and have not been claimed or clawed-back by any person standing in the place of or representing the Customer or Third Party), the Customer agrees that:
10.9.1 it holds the proceeds of re-supply of the materials on trust for and as agent for the Contractor immediately when they are receivable or received;
10.9.2 it must either pay the amount of the proceeds of re-supply to the Contractor immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Contractor;
10.9.3 any accessory or item which accedes to any of the materials by an act of the Customer or of any person at the direction or request of the Customer becomes and remains the property of the Contractor until the Contractor is paid in accordance with clause 10.6 when the property in the materials passes to the Customer;
10.9.4 if the Customer fails to pay the Price within the period as stated in the Contract or is otherwise indebted to the Contractor, the Contractor may recover possession of the materials at any site owned, possessed or controlled by the Customer and the Customer agrees that the Contractor has an irrevocable licence to do so and to dispose of the equipment to recover costs.
11.1 The Contractor’s Quotation is based on a continuous work programme, unless otherwise stated. If the Customer causes the Works to be delayed or delays are caused by any of the events in clause 9, then the performance of the Contractor’s obligations under this agreement or any Contract between the parties shall be suspended for the period of such delay and the Completion Date shall be extended accordingly.
11.2 Where the Contractor is entitled to an extension of time under this clause, the Customer shall pay to the Contractor such extra costs as are reasonably incurred by the Contractor by reason of the delay including compensation for loss of profit, additional overheads or administrative expenses incurred as a result.
12. PRACTICAL COMPLETION AND DEFECTS LIABILITY PERIOD
12.1 The Contractor shall complete the Works to Practical Completion on or before the Completion Date (as amended or varied by the terms hereof).
12.2 When, in the opinion of the Contractor, the Works have been completed to a stage of Practical Completion, the Contractor may give the Customer notice thereof.
12.3 Within five (5) days after receipt of such notice, the Customer, if not satisfied that the Works are practically complete, shall give to the Contractor notice of those matters, which the Customer requires to be carried out in order for the Works to reach Practical Completion. If the Customer does not do so then the Works shall be deemed to be practically complete without any omissions or defects.
12.4 Upon receipt of a notice from the Customer in accordance with clause 12.3 the Contractor must give the Customer a notice that:
12.4.1 lists the minor defects and minor omissions that both the Customer and the Contractor agree exist and provide a value of the cost to rectify those defects and/or omissions; and
12.4.2 the Contractor is to use all reasonable endeavours to rectify, as soon as is reasonably practicable, the listed defects and omissions referred to in the list issued pursuant to Clause 12.4.1 and in any event, by the end of the Defects Liability Period; and
12.4.3 lists the minor defects and omissions the Customer claims exist, but which are not agreed by the Contractor to exist; and
12.4.4 is signed by the Contractor. The Customer shall then immediately pay the Contractor all moneys forming part of the Price (as may have been varied) which have not then been paid save for any retention moneys to be retained according to clause 13.1.
12.5 The Contractor must make a reasonable effort to have the Customer sign the notice referred to in clause 12.4 to acknowledge its contents.
12.6 If, without a written agreement to do so the Customer takes possession of and/or uses the Works or any part thereof, the Works shall be deemed to have been practically completed on the date of such possession and/or occupancy and/or use.
12.7 The date of Practical Completion shall be the date for commencement of the Defects Liability Period.
13. WORKING HOURS
13.1 All work will be carried out during normal working hours (7.00am-4.00pm Monday to Friday) unless otherwise stated. Should the Customer require the Contractor to carry out any of the Works outside the nominated hours, or it otherwise be reasonably necessary to do so, then the Contractor may carry out the Works outside those hours in which event, the Price will be increased to reflect any increased costs, such as payment of wages at a higher rate, for that part of the Works performed outside of the nominated hours and the Customer shall pay the increased Price to the Contractor in accordance with the provisions of clause 7.
14.1 To the extent permitted by law, any liability of the Contractor to the Customer under this Contract shall be limited as follows:-
14.1.1 In the case of goods supplied, to the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the costs of replacing the goods or of acquiring equivalent goods or the payment of the costs of having the goods repaired, at the election of the Contractor;
14.1.2 In the case of services provided, the resupply of the services or the payment of the costs of having the services supplied again, at the election of the Contractor;
14.2 The Contractor, notwithstanding any right the Customer may have at law or in equity or otherwise under this Contract, shall not be liable for any loss or damages suffered by the Customer for any economic loss or consequential loss or damage including but not limited to, loss of profits, loss of opportunity or loss of use of the Site or of the benefit of the Works or any part thereof.
15.1 The Contractor warrants that as at the date of this agreement, the Contractor is registered under the GST Act and that the Contractor is not aware of any circumstances existing which would require the Commissioner of Taxation to cancel the registration.
15.2 Unless expressly stated to the contrary, any Price, Prime Cost Item, Provisional Sum or the costs of any Variation (for the purposes of this clause, referred to collectively and individually as, “costs”) is exclusive of GST. The Customer shall pay any GST applicable to any supply in terms of the GST Act in addition to any costs.
16.1 The Contractor shall effect and maintain during this agreement, Public Liability Insurance to a value of not less than $5,000,000 per claim and WorkCover Insurance in accordance with the requirements of the applicable law.
16.2 The Contractor shall provide if requested by the Customer evidence of the existence of such policies.
16.3 It shall be the responsibility of the Customer to arrange insurance for the Works in transit to the Site and thereafter, as the risk for Works will pass to the Customer once the Customer has been notified of the dispatch or delivery of such Works.
16.4 In the event of complete loss of the Works during transit or storage on site, payment of the amount due to the Contractor by the Customer will be deemed to be due on advice of such loss. In the event of any damage to the Works in transit or storage on site, such damage shall be borne by the Customer. The Contractor reserves the right to re-quote the Price at which any replacement equipment will be supplied.
16.5 Where transit insurance cover has been obtained by the Contractor at the request and the cost of the Customer, the Customer must advise of any claims for damage to the Works within 5 days of receipt of the Works by the Customer.
17.1 In case the Works ordered are not uplifted from the Contractor’s premises or if no arrangements have been made to have these delivered within 14 days after notification of availability for dispatch, or the Customer for some reason is unable to take delivery of the Works, the Contractor shall be entitled to arrange for the storage of the goods, whether at its own premises, or elsewhere, on the Customer’s behalf and all charges for storage and insurance shall be payable by the Customer upon demand being made by the Contractor for those costs.
18. IMPORT CONTROL
18.1 In the event of any contract relating to the sale or manufacture of goods requiring importation into Australia of any goods, then the Contract is conditional upon the grant of the necessary licence to import such goods or parts thereof.
19. CUSTOMS DUTY
19.1 Customs Duty is not included in the Quotation unless specified.
20.1 Except otherwise provided herein, any notice under this agreement shall be given in writing. If delivered by prepaid post to the address stated in this agreement or to such other address the party to whom the notice is given may thereafter have notified, such notice shall be deemed to have been received two (2) business days after the date of posting.
21. SECURITY OF PAYMENT
21.1 The provisions of clauses 21 and 22 shall not apply to a Customer or Guarantor which is a corporation or in respect of Works to which the Domestic Building Contracts Act (Qld) applies.
21.2 The Guarantor unconditionally guarantees to the Contractor the due and punctual performance and observance by the Customer of all the obligations of the Customer under this agreement including the payment of all moneys due and payable to the Contractor at the time and in the manner provided in this agreement. The Guarantor unconditionally indemnifies and will keep the Contractor indemnified against any loss or damage it suffers by reason of or as a result of the breach by the Customer of this agreement.
21.3 The Customer and each Guarantor hereby charges all of their respective real and personal property where so ever situated with the amount of moneys owed by the Customer to the Contractor under this Contract or otherwise. As further and better security for the payment of all money from time to time owing by the Customer to the Contractor the Customer and each Guarantor mortgages and charges to and in favour of the Contractor all right, title, estate and interest which they hold or may hold hereafter in any real or personal property in Australia. The Customer and each Guarantor shall, at the request of the Contractor, sign execute and deliver in favour of the Contractor such mortgage or charge over the Customer’s and/or Guarantor’s real or personal property in registerable form as the Contractor may require, such document or documents incorporating such terms as determined by the Contractor’s solicitors, to protect the interest of the Contractor herein, within 10 days of the Contractor requesting the same of the Customer and/or the Guarantor.
21.4 For the purpose of giving full effect to this agreement and the powers hereby conferred, whilst any moneys now or from time to time are owing by the Customer to the Contractor, the Customer and each Guarantor appoints the Contractor and any of its authorised officers, jointly and each of them severally, the true and lawful attorney and attorneys of the Customer and/or Guarantor, as the case may be, to do anything in the name of the Customer and/or the Guarantor, as the case may be, or of the Contractor, which the Customer and/or the Guarantor, should do or should have done hereunder and to do all such acts, matters and things (including the execution of any deed, mortgage, bill of sale, charge, share transfer, transfer of land and other documents whatsoever) as such attorney or attorneys may deem expedient for carrying out, or in connection with the exercise of all or any of the rights or powers herein contained or implied, to give effect to this agreement or for the enforcement thereof and this power of attorney is deemed irrevocable and given by way of security.
22.1 For the avoidance of any doubt, the Customer and each Guarantor confirms that the Contractor has a caveatable interest in any land of which they are the registered proprietor for the purposes of the Land Title Act 1994 and its equivalent in another jurisdiction.
23. SUPPLY PRICE FLUCTUATIONS
23.1 Where materials and goods to be supplied have increased in price after this Contract was formed, then the Contract Price shall be varied by the amount of the difference between the price of those materials and goods at the time the Contract was entered into and the actual cost to the Contractor including any duty or tax payable thereon.
24. CREDIT CARD SURCHARGE
24.1 The Contractor will charge a fee for accepting payment of moneys due under this agreement by way of credit card. The amount of the fee will be equivalent to 4% of the amount of any such payment(s).
25. PATENTS AND COPYRIGHT
25.1 The Customer hereby assigns to the Contractor:
25.1.1 All inventions, discoveries and novel designs whether or not registerable as designs under the Design Act 2003 (Cth), patents under the Patent Act 1990 ( Cth) and trade marks under the Trade Marks Act 1995 ( Cth) in respect of the Works and the Contract Documents.
25.1.2 The entire copyright in all Works, including but not limited to all literary and other works as defined in the Copyright Act 1968 (Cth);
25.1.3 Any other intellectual property, rights, title or interests created by Contractor as a result of and in the course of this Contract with the Customer.
25.1.4 All intellectual property made, created or discovered by the Contractor in the course of this agreement.
25.2 The Contractor shall not be obliged to disclose to the Customer any intellectual property, made, created or discovered in the course of this agreement.
26. PRIVACY ACT 1988 (CTH)
26.1 The personal information provided by the Customer will be held by the Contractor.
26.2 The Contractor may use the personal information provided by the Customer for the purposes of completing the Works and for
26.3 direct marketing of products and other services offered by the Contractor or an organisation it is affiliated with or represents. The Customer has the right to request not to receive direct marketing material.
26.4 The Customer consents to the Contractor collecting and using its personal information as specified above.
27. DISPUTE RESOLUTION
27.1 Should a matter be referred to Dispute Resolution in terms of this agreement, the following provisions shall apply:-
27.1.1 The parties shall appoint a person who is a registered adjudicator in terms of the Building and Construction Industry Payments Act (Qld) to resolve the dispute and who shall act as an expert and not an arbitrator (“the Expert”);
27.1.2 If the parties cannot agree as to who shall be the Expert, the President or the President’s delegate, for the time being, of the Queensland Law Society, shall nominate the Expert;
27.1.3 The Expert shall determine the rules upon which he shall resolve the dispute including as to what submissions may be made by the parties, the manner in which the dispute is to be resolved, including as to payment of any moneys, the carrying out of any work, the rights of a party under this agreement and payment of his costs, including security therefore. All decisions of the Expert shall be final and binding on the parties.
27.1.4 All Adjudication Applications under the Building and Construction Industry Payments Act (2004) shall be made to the Queensland Law Society or such other Authorized Nominating Authority as nominated by the Queensland Law Society.
28.1 The Contractor may set-off against any moneys owing by it to the Customer, any moneys owing by the Customer to the Contractor.
29. UNENFORCEABLE PROVISIONS AND SEVERANCE
29.1 If a provision of this contract is void, voidable, unenforceable or illegal but would not be if it was read down, it shall be read down and if it would not be void, voidable, unenforceable or illegal if a word or words were omitted, that word or those words are severed, but should the provision nevertheless be void, voidable, unenforceable or illegal, it shall be severed yet the remainder of this agreement will remain in full force and effect.
29.1.1 if the provision would not be void, voidable, unenforceable or illegal if a word or words were omitted, that word or those words are severed; and in any other case, the whole provision is severed and the remainder of this agreement will be of full force and effect.