Terms And Conditions For The Supply Of Services By The Services Provider
The Services Provider agrees to render the Services to the Client and the Client agrees pay the Services Provider all Outstanding Amounts, on the terms of this Agreement.
1. Definitions and interpretation
Definitions
In this Agreement
Amended Quote means a quote that is amended by the Services Provider in accordance with clause 4.4.
Australian Consumer Law means Div I of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010.
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in Victoria.
Claims means any and all legal proceedings, actions, suits, causes of action, proceedings, claims, accounts, fines, demands, debts due, costs payable and expenses whether or not currently known or made and whether or not presently in existence.
Client means the client that is specified in the Quote or if applicable in any Amended Quote, and any other written Agreement between the Services Provider and the Client between the Services Provider and the Client, to whom the Services Provider renders the Services.
Commencement Date means the date that is agreed to be the Commencement Date between the Services Provider and the Client or the date that the Services Provider commences rendering Services to the Client, whichever is earlier.
Completion Date means the date that is agreed to be the Completion Date between the Client and the Services Provider.
Controller has the meaning given in the Corporations Act.
Corporations Act means the Corporations Act 2001 Cth.
Expenses and Disbursements means the expenses and disbursements that are referred to in the Quote or if applicable in any Amended Quote.
Fees means the fees that are referred to in the Quote or if applicable in any Amended Quote.
GST means the tax imposed by the A New Tax System Goods and Services Tax Act 1999 and related tax imposition Acts of the Commonwealth of Australia.
Insolvent means, in relation to any party
if a corporation
- it is unable to pay its debts when they fall due
- it is or states that it is an insolvent under administration or insolvent each as defined in the Corporations Act
- it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property
- it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any law or dissolved in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the Services Provider
- an application or order has been made and, in the case of an application, it is not stayed, withdrawn or dismissed within 5 Business Days, a resolution is passed, proposal put forward, or any other action taken, in each case relating to that person, which is preparatory to or could result in any of the events described in sub-clauses above
- it is taken under section 459F of the Corporations Act to have failed to comply with a statutory demand
- it is the subject of an event described in section 459C or section 585 of the Corporations Act
- it takes any steps or omits to take any steps or ASIC takes steps that result in or will result in the corporation being deregistered as that term is defined in the Corporations Act
- any expropriation, attachment, sequestration, distress or execution affects any assets of the corporation or
- anything analogous or having a substantially similar effect to any of the events described above happens relating to that corporation under the law of any applicable jurisdiction or
- anything analogous or having a substantially similar effect to any of the events described above happens relating to that corporation under the law of any applicable jurisdiction
- the person authorises a registered trustee or lawyer to call a meeting of their creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of their creditors
- a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets
- the person commits an act of bankruptcy or
- anything analogous or having a substantially similar effect to any of the events described above happens relating to that person under the law of any applicable jurisdiction.
1.2 Interpretation
In this Agreement, unless the context otherwise requires
headings are for convenience only and do not affect interpretation
words importing the singular include the plural and vice versa
a word importing a gender includes the other gender
a reference to a person includes an individual, a partnership, a body corporate, a joint venture, an association whether incorporated or not, a government and a government authority or agency
a reference to a party or a person includes the party’s or the person’s executors, legal personal representatives, successors, transferees and assigns
a reference to a section, schedule, part, clause or party is a reference to a part, clause of, or a party to, this Agreement
A reference to this Agreement includes the recitals and any schedules, annexures, exhibits or attachments to this Agreement
A reference to legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under such legislation
If the day on which anything is to be done is not a Business Day it shall be done on the next Business Day and
A reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars
2. Services
2.1 The Client engages the Services Provider to render the Services to it.
2.2 The Services Provider must render the Services to the Client in accordance with the terms of this Agreement. In this regard, for the avoidance of doubt, the parties acknowledge that the terms of the Quote or (if applicable) any Amended Quote signed by the Client form part of this Agreement.
2.3 The Services Provider must render the Services on the Site, or at such other location that is agreed in writing between the Services Provider and the Client.
2.4 The Services Provider must perform the Services with a high standard of care and diligence, and in accordance with all applicable laws.
3. Payment of the Outstanding Amounts
3.1 The Client must make Payment of all Outstanding Amounts owing to the Services Provider in respect of the Services within 7 (seven) days of the Services Provider rendering a Tax Invoice to the Client, or within such other timeframe that is specified in the Tax Invoice.
3.2 Unless otherwise stated, all Outstanding Amounts do not include an amount for GST. If a supply by the Services Provider to the Client is subject to GST, the Client must pay the applicable GST as a separate amount.
3.3 Until the Client pays the Services Provider any Outstanding Amount in full the Services Provider shall be entitled to maintain an action against the Client for the full Outstanding Amount at its absolute discretion.
3.4 The Client acknowledges that the Services Provider’s entitlement to Payment of all Outstanding Amounts is not conditional upon the completion or success of the Services rendered.
4. Quote
4.1 The Services Provider will provide the Client with a Quote before rendering the Services.
4.2 Unless previously withdrawn, any Quote issued by the Services Provider is valid for the period stated therein or where no period is so stated, for 14 (fourteen) days from the date of issue.
4.3 Unless otherwise expressly agreed in writing, a Quote includes the cost of delivery of the Materials to the Site.
4.4 The Services Provider reserves the right to issue an Amended Quote to the Client at any time before it commences rendering the Services to the Client, in the event that the changes are required as a result of
any change to the scope of the Services to be rendered to the Client
there being a rise or fall in the cost of any Materials to be used in the course of rendering the Services
there being a rise or fall of any other nature in the cost of rendering the Services and/or
any fluctuation in the rate of exchange between any currency and the Australian Dollar if such foreign currency is used in the process of determining the Quote.
4.5 In the event that the Services Provider amends a Quote pursuant to clause 4.4, the Services Provider will provide the Client with an Amended Quote as soon as practicable, at which point the amended Quote will be the Quote in respect of the Services.
4.6 Prices in the Quote refer to the entirety of the Services to be rendered to the Client by the Services Provider, and are subject to change by the Services Provider if only part of the Services in a Quote are later sought by the Client.
4.7 For the avoidance of doubt, prices in the Quote are only an estimate of the total cost for the Services Provider to render the Services to the Client, based on the estimated Services to be rendered to the Client as at the date of the Quote. The actual amount which the Services Provider invoices the Client for the Services in a Tax Invoice may vary from the amount stated in the Quote, based on the actual Services rendered to the Client by the Services Provider.
4.8 Without limiting the generality of clause 4.7 and for the avoidance of doubt, the Services Provider will charge the Client extra (beyond the amount estimated in the Quote) for works of the following nature:
any extra work carried out by the Services Provider as a result of conditions on the Site that were previously not known or unforeseen by the Services Provider including, but not limited to:
the excavation and/or removal of rock by the Services Provider by any method (whether carried out by hand work and/or with machinery) including, but not limited to, by way of hammering, drilling and blasting or chemical agent and
the Services Provider removing and/or transporting from the Site and/or relocating to another location any surplus excavated materials.
the Services Provider removing spoil from the Site.
4.9 An indication of the time frame for the rendering of the Services in a Quote is an estimate only, and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Services Provider.
5. Services Request
5.1 Following the provision of a Quote by the Services Provider, the Client may make a Services Request to the Services Provider.
5.2 The Services Provider reserves the right to refuse a Services Request within 7 days of receipt of the Services Request, for any reason.
5.3 Every Services Request must
be submitted in writing by the Client;
be made by way of the Client (or an authorised representative of the Client in the event that the Client is a corporation) signing the required place on the Quote to signify that the Client has accepted the Quote and
specify the date on which the Client requires the Services Provider to render the Services.
5.4 Placement of a Services Request by the Client signifies acceptance by the Client of the Quote and this Agreement.
5.5 The Services Provider may in its absolute discretion refuse to render the Services where
any Materials are unavailable for any reason whatsoever
credit limits cannot be agreed upon or have been exceeded or
payment for any Services previously rendered by the Services Provider to the Client or any related corporation of the Client or to any other party who is, in the reasonable opinion of the Services Provider, associated with the Client under the same or another Agreement, has not been received by the Services Provider.
5.6 The Client may not cancel a Services Request without the prior written consent of the Services Provider. Where a Services Request is cancelled, the Client indemnifies the Services Provider against any Losses incurred by the Services Provider as a result of the cancellation.
6. Tax Invoices and suspension of Services
6.1 The Services Provider will submit a Tax Invoice for any Outstanding Amount to the Client on at least a monthly basis. The Client must pay each Tax Invoice rendered by the Services Provider in full within 7days from the date of the Tax Invoice, or within such other timeframe that is specified in the Tax Invoice.
6.2 If Payment for the invoiced amount is not received by the Services Provider in full at the end of that 7 day period or within such other timeframe that is specified in the Tax Invoice, the Services Provider will issue a reminder notice to the Client Reminder Notice at such time as the Services Provider considers fit in its absolute discretion.
6.3 If Payment of the Tax Invoice is not received within 7 days of the Services Provider issuing the Reminder Notice to the Client, the Services Provider may at its absolute discretion suspend provision of the Services for such period that any Outstanding Amount (including any interest charged pursuant to clause 6.4 remains outstanding.
6.4 The Services Provider is entitled to charge interest at the interest rate set from time to time under the Penalty Interest Rates Act 1983 on any Outstanding Amount under Tax Invoice from the date a Tax Invoice is due and payable until the time Payment is made.
7. Warranties, indemnity and insurance
7.1 The Services Provider warrants that
it will render the Services with a high standard of care and diligence and in accordance with all applicable laws
it has the necessary skills, experience, qualifications, resources, capacity and know-how to supply the Services in accordance with this Agreement and
in undertaking the obligations under this Agreement it will not be in breach of any obligation owed to any other person.
7.2 The Services Provider must during the term of this Agreement at its cost take out and maintain all necessary or prudent insurances in relation to the Services.
8.Consumer Guarantees
8.1 Except as provided in this Agreement, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the Materials or Services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded to the fullest extent permitted by the applicable law.
8.2 All other conditions and warranties, statutory or otherwise and whether express or implied, are hereby excluded to the fullest extent permitted by the applicable law, and no guarantee, other than that expressly herein contained and the statutory guarantee that cannot be excluded or limited under the applicable law, applies to the Materials or Services to which the guarantee relates, or any accessory or part thereof.
8.3 In respect of the Materials, the Services Provider’s liability for a breach of or failure to comply with a guarantee under the Australian Consumer Law other than section 51, 52 or 53 for the supply of goods is expressly limited to
the replacement of the Materials or the supply of equivalent Materials
if applicable, the repair of the Materials
the payment of the cost of replacing the Materials or of acquiring equivalent Materials and/or
if applicable, the payment of the cost of having the Materials repaired.
In respect of the Services, the Services Provider’s liability for a breach of or failure to comply with a guarantee under the Australian Consumer Law for the supply of services is expressly limited to
the supplying of the Services again or
the payment of the cost of having the Services supplied again.
9. Indemnity
9.1 To the extent permissible by law, the Client will indemnify the Services Provider against any unauthorised express or implied warranty or representation under statute or general law as to merchantability, description, quality, suitability or fitness of the Materials for any purpose or as to design, assembly, installation, materials or workmanship or otherwise made by any agent, employee or representative of the Client to a third party. For the avoidance of doubt, a warranty or representation will be unauthorised unless the warranty or representation has previously been made by the Services Provider or authorised by it.
10. Responsibilities of the Client
10.1 The Client
must work co-operatively with the Services Provider during the course of the Services Provider rendering the Services
must promptly provide the Services Provider with access to and/or copies of all books and records which the Services Provider reasonably requires in order to be able to render the Services
must make decisions and provide all information and instructions required by the Services Provider as soon as practicable following a request during the course of the Services Provider rendering the Services, in order to ensure efficient and satisfactory progress in respect of delivery of the Services
permits the Services Provider to take photographs, videos or other media of the Services rendered at its absolute discretion, and to use those photographs, videos or other media at its absolute discretion including, but not limited to, for marketing purposes
allows the Services Provider to display Services Provider’s branded signage onsite, and within marketing collateral, during the course of rendering the Services
must engage appropriate specialist consultant or contractorto identify, abate and/or remove any asbestos or hazardous or toxic substances / materials and to warrant in writing that the site is in full compliance with applicable laws to the fullest extent required and
is responsible for the provision of all legal, survey and other particulars that are necessary for the Services Provider to be able to effectively render the Services to the Client. This includes, but is not limited to, providing the Services Provider with access to all existing structures, services and features, sub-surface conditions and adjoining sites and structures and providing the Services Provider with all required specialised advice that is not of a kind usually provided by the Services Provider.
11. Underground services
11.1 The Client is responsible for locating, marking clearly on the Site and notifying the Services Provider in writing of the position of all underground services on the Site prior to the Services Provider commencing rendering the Services.
11.2 Without limiting the generality of clause 11.1, prior the Services Provider commencing rendering the Services the Client must identify in writing to the Services Provider and mark clearly on the Site all electrical and telephone cables, fibre optic cables, gas services, water mains, storm water, sewerage and drainage pipes, sewer sludge mains, oil pumping mains, pumping services, irrigation pipes, water irrigation systems and similar obstructions that may be on the Site.
11.3 The Services Provider warns the Client that ‘Dial Before you Dig’ is, or may be, of limited use for the purpose of identifying the underground services that are on the Site.
11.4 Whilst the Services Provider will take all reasonable care to avoid damage to any underground services on the Site, the Client agrees to indemnify the Services Provider and its contractors, servants and/or agents against any and all Claims, loss and damage incurred as a result of damage to underground services on the Site which the Client has not precisely located and provided the Services Provider with notice of.
12. Term and termination
12.1 This Agreement commences on the Commencement Date and continues in force
until the Completion Date
where the Services Provider has not rendered all Services by the Completion Date, until all Services have been rendered or
such further date that is agreed by the Services Provider and the Client in writing.
12.2 A party may terminate this Agreement immediately by giving written notice to the other party if at any time
a party the Breaching Party commits a breach of any provision of this Agreement other than a minor breach that causes no material harm and, where the breach is capable of remedy, fails to remedy the breach within 30 days of receiving written notice to do so from the other party the Innocent Party or
a party becomes Insolvent, enters into liquidation or receivership, becomes subject to any form of external administration, makes a composition or arrangement with its creditors generally, or takes advantage of any statute for the relief of insolvent debtors.
12.3 In the event that the Client terminates this Agreement
the Client must pay to the Services Provider all amounts accrued or due pursuant to this Agreement but unpaid as at the date of termination; and
the Client will forfeit any amounts already paid to the Services Provider on account of amounts owing pursuant to this Agreement.
13. Retention of title.
13.1 The Services Provider reserves the following rights in relation to all Materials supplied in the course of rendering the Services until all amounts owed by the Client pursuant to this Agreement are paid to it
ownership of all Materials supplied shall remain with the Services Provider
the Client grants an irrevocable license to the Services Provider and/or any authorised agent or representative of the Services Provider to enter the Site, the Client’s premises and/or the premises of any associated company of the Client where the Materials are located, to retake possession of the Materials. The Client agrees that the Services Provider and/or any authorised agent or representative of the Services Provider shall not incur any liability for trespass and/or any resulting damage as a result of exercising its rights pursuant to the said license
the Services Provider reserves the right to retain or resell all Materials that are repossessed pursuant to sub-clause at its absolute discretion, without having to account to the Client in any way
if the Client resells the Materials to any other party, the Client shall hold the proceeds of such in a separate identifiable account as the beneficial property of the Services Provider and shall pay such amount to the Services Provider upon demand;
while the Materials remain the property of the Services Provider, the Client agrees that
the Client has no right or claim to any Interest in the Materials to secure any liquidated or unliquidated debt or obligation that the Services Provider may owe to the Client
the Client may not claim any lien over the Materials
the Client warrants and undertakes that the Client will not create any Interest in the Materials in favour of any third party except as the Services Provider authorises in writing and
where the Client is in actual or constructive possession of the Materials
the Client will not deliver the Materials or any document of title to them to any person except with the written consent of or at the written direction of the Services Provider and
the Client acknowledges and agrees that it is possession of the Materials solely as bailee of the Materials, and therefore owes the services the duties and liabilities of a bailee to the Services Provider
pending payment of all amounts owing to the Services Provider under this Agreement, the Client
must not supply any of the Materials to any party without the prior written consent of the Services Provider
must not allow any person to have or acquire any Security Interest in the Materials
must insure the Materials for their full insurable or replacement value whichever is higher with an insurer licensed or authorised to conduct the business of insurance in the place where the Client carries on business and
if in breach of sub-clause above the Client sells any of the Materials to any party before it has paid all amounts owing under this Agreement to the Services Provider, the Client agrees that
it holds the proceeds of the said sale on trust for and as agent for the Services Provider immediately when they are receivable or received by the Client
immediately upon receipt of the proceeds of sale the Client must either pay the entire amount the Services Provider or pay those proceeds into an account with a bank or financial institution or deposit taking institution as trustee for the Services Provider.
14. Liability
14.1 Nothing in this Agreement shall limit or exclude the liability of the Services Provider for any liability which cannot be limited or excluded by the applicable law.
14.2 Subject to sub-clause 14.1, the Services Provider shall not in any circumstances have any liability to the Client for any of the following types of loss or damage arising under or in relation to this Agreement
any loss of profits, business, contracts, anticipated savings, goodwill, or revenue or any wasted expenditure regardless of whether any of these types of loss or damage are direct, indirect or consequential or
any indirect or consequential loss or damage whatsoever.
14.3 Subject to clauses 14.1 and 14.2, the total liability of the Services Provider under or in connection with this Agreement whether in contract, tort including negligence or otherwise, shall be limited in aggregate for all claims to the amount equalling the sum paid or payable as consideration for the provision of the Services.
14.4 Subject to clause 14.1, the Services Provider shall not be liable for any claim under this Agreement unless the claim has been made by the Client to the Services Provider within 1 month of the date on which such claim became known to the Client.
15. Force majeure
15.1 Each party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such party’s reasonable control force majeure, including but not limited to, any Acts of God, fire, flood, explosion, earthquake, other natural forces, pandemic, epidemic, government restrictions imposed as a result of any pandemic and/or epidemic, war, civil unrest, strike or labour disturbance, provided that the party has not caused such event to occur.
15.2 The excuse from liability that is referred to in clause 15.1 shall be effective only to the extent and duration of the force majeure event causing the failure or delay in performance.
15.3 Notice of a party’s failure or delay in performance due to force majeure must be given to the other party within 5 calendar days after its occurrence. All Completion Dates under this Agreement that have been affected by force majeure shall be suspended for the duration of such force majeure.
15.4 In the event that a force majeure persists for 30 days or more, either party may terminate this Agreement upon written notice to the other party.
16. Dispute resolution
16.1 If a dispute arises between the parties under or in connection with this Agreement, the parties must negotiate in good faith for the purpose of attempting to resolve the dispute for the period of 14 days from the date of one party Aggrieved Party giving the other party Other Party written notice of the dispute Notice of Dispute.
16.2 If the parties are unable to resolve the dispute within 14 days of the Aggrieved Party giving a Notice of Dispute to the Other Party, then either party may by notice in writing advise the other party that it seeks to have the dispute resolved by mediation Mediation Notice.
16.3 Within 21 days of one party giving a Mediation Notice to the other party, the parties may refer the matter to a mutually agreed mediator. In the event that an agreement cannot be reached on an appropriate mediator, any party may refer the dispute to a mediator appointed by the Law Institute of Victoria.
16.4 Mediation must occur within 30 days of the appointment of the mediator and the costs of the mediation are to be borne equally between the parties.
16.5 In the event that the dispute is not resolved at mediation, either party may take steps to resolve the dispute by way of litigation.
16.6 For the avoidance of doubt, nothing contained in this clause 16 shall deny a party the right to seek injunctive relief from an appropriate Court where failure to obtain such relief would cause irreparable damage to the party concerned.
17. General
17.1 Entire agreement
This Agreement contains the entire agreement between the parties as to its subject matter and may only be amended in writing signed by all parties.
17.2 Notices
In the case of the Services Provider, notices must be given to the address that is specified in the definition of Services Provider, or as otherwise notified by the Services Provider in writing.
In the case of the Client, notices must be given to
the last address which the Client has advised to the Services Provider or
alternatively, to the address of the Client that is specified in any written Agreement between the Services Provider and the Client or
alternatively, as otherwise notified by the Client to the Services Provider in writing.
Notices must be delivered in person or sent by fax or prepaid post airmail if international. Notices will be deemed to have been received
if delivered in person — on the date of delivery
if sent by fax — on production of a transmission report from the sender’s fax machine evidencing that the fax was successfully sent in its entirety
if sent by prepaid post to or from a place within Australia, 3 Business Days after posting or
if sent by prepaid post to or from a place outside Australia, 7 Business Days after posting.
17.3 No assignment
A party must not assign any of its rights or obligations under this Agreement without the other party’s prior written consent.
17.4 No waiver
No delay or indulgence by a party in enforcing this Agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach.
17.5 No disadvantage to party preparing Agreement
No part of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.
17.6 No relationship
Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture, employment, principal and agent or trustee and beneficiary.
17.7 Parties must do all things and sign all documents
A party, at the request of another party, must do all things and sign all documents necessary to give effect to this Agreement.
17.8 Severability
If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.
17.9 Jurisdiction
This Agreement is governed by the laws of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that state.
17.10 Authority of parties
Each signatory to the Quote and/or if applicable any Amended Quote and any other written Agreement between the Services Provider and the Client warrants that he or she has authority to bind the party that he or she is stated to represent.
17.11 Counterparts
The Quote and/or if applicable any Amended Quote and any other written Agreement between the Services Provider and the Client may be executed in any number of counterparts all of which taken together will constitute one agreement.