1.Definitions and Interpretation
1.1 The following words shall have their corresponding meanings unless the context requires otherwise.
(a) “Contractor” means Redkem Constructions Pty Ltd T.A Redkem, its successors and permitted assigns or any person acting on behalf of and with the authority of Redkem Constructions Pty Ltd T/A Redkem.
(b) “Owner” means the Owner or any person acting on behalf of and with the written authority of the Owner and includes the Owner’s successors and permitted assigns.
(c) “Works” shall mean all Works (including the supply of Materials) undertaken by the Contractor and described in this contract and includes any advice or recommendations. Where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for each other.
(d) “Materials” shall mean Materials supplied by the Contractor that are required in order complete the Works.
(e) “Contract Price” means the Contract Price of the Works (as agreed between the Contractor and the Owner) specified in Box C above (and shall include any adjustments made under the provisions contained in this contract).
(f) “Security Monies” means the amount of the Contract Price that is payable under this contract for the Works which is be provided by the Owner personally and which is not subject to provision by way of a loan from a financial institution.
(g) “Worksite” means the land (or that part of the land) that the Contractor reasonably needs to occupy in order to carry out and practically complete the Works required under this contract.
(h) ”Resident Owner” has the same meaning as contained in the Schedule of the QBCC Act 1991 and means an owner who is an individual and intends to reside on the Worksite on completion of the domestic building work or within 6 months after the completion of the Works; and
(i) “QBCC Act” means the Queensland Building and Construction Commission Act 1991 (and includes any amendments from time to time).
1.2 In this Contract, unless the context requires otherwise:
(a) Plurals. The singular shall include the plural and vice versa and words importing one gender shall include every gender and a reference to a person shall include any other legal entity of whatsoever kind and vice versa.
(b) Statutory amendments. A reference to a statue, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction).
(c) Joint obligations. An obligation incurred in favour of two or more parties shall be enforceable by them jointly and severally.
(d) Parts of Contract. References to this Contract including its clauses, schedules, and annexures.
(e) Headings. Headings shall be ignored in construing this document.
2.Acceptance/Cooling off Period
2.1 Any instructions received by the Contractor from the Owner (including the acceptance of a Domestic Quotation) for the provision of Works and/or the Owner’s acceptance of Works undertaken by the Contractor shall constitute acceptance of this contract subject to the Owner being able to withdraw from this contract (subject to clause 2.2) within five (5) business days following the later of:
(a) receipt from the Contractor of a signed copy of this contract; or
(b) receipt from the Contractor of a copy of the appropriate contract information sheet.
2.2 To withdraw from this contract the Owner must complete a withdrawal notice stating that the Owner withdraws from the Contract pursuant to section 35 of the QBCC Act within the timeframe specified in clause 2.1 above, and:
(a) give it to the Contractor; or
(b) leave it at the Contractor’s address in this contract; or
(c) serve it on the Contractor in accordance with any provision in this contract providing for delivery of notices on the Contractor by the Owner; and
(d) pay to the Contractor the sum of one hundred dollars ($100.00) plus any out-of-pocket expenses reasonably incurred by the Contractor before the date of withdrawal from this contract. If the Owner has paid to the Contractor an amount which is greater than this amount as at the date of the withdrawal from this contract, the Contractor must refund to the Owner any excess monies.
2.3 The Owner may not withdraw from this contract where:
(a) there has been a previous contract on similar terms for the same Worksite/property or
(b) the Owner has received independent legal advice about the contract; or
(c) the Owner informs the Contractor that they have received independent legal advice about the contract when or after the contract is made.
2.4 Subject to clauses 2.1 and 2.2 upon acceptance of this contract by the Owner, this contract is binding and can only be rescinded in accordance with this contract or with the written consent of the Contractor, and shall prevail to the extent of any inconsistency with any other document, or reference to any prior representations, conditions or agreement (whether written or oral) between the Owner, and the Contractor.
2.5 The Owner acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or
(b) contained/omitted in/from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
2.6 In the event such an error and/or omission occurs in accordance with clause 2.5, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Owner shall not be entitled to treat this contract as repudiated nor render it invalid.
3.Contract Price and Payment
3.1 The Owner shall pay the Contractor the deposit stated in Box G upon signing this contract, and agrees to pay the Contract Price for the Works in accordance with this contract.
3.2 The Owner must within ten (10) working days of signing this contract provide evidence to the Contractor’s satisfaction of the Owner’s ability to pay the Contract Price. The Contractor may at any time that this contract remains in force request such information to be supplied by the Owner so that the Contractor may confirm the Owner’s ability to pay the balance of the Contract Price or any variation to this contract.
3.3 The Owner agrees to immediately notify the Contractor in the event that their ability to pay the Contact Price is reduced or ceases at any time that this contract remains in force.
3.4 The Contractor is entitled to claim payment of the Contract Price progressively in accordance with the stages specified in Box G. Each progress payment claim shall:
(a) be in writing and specify the total amount claimed;
(b) state any adjustment to the Contract Price which is allowed under this contract (whether authorised variations, related to Prime Cost Item/s or Provisional Sum/s, or otherwise, which have become due and payable by the Owner);
(c) confirm that all Works to which the payment stage relates have been completed.
3.5 The Owner must pay for all progress payment claims within seven (7) working days of receipt of the progress payment claim from the Contractor.
3.6 Where the Owner’s lender is to pay a progress payment claim on the Owner’s behalf then the Owner shall ensure that each such payment is made in accordance with clause 3.5.
3.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Owner and the Contractor.
3.8 In the event that the cost to the Contactor of performing the Works increases after this contract has commenced due to any increase, or the introduction by a statutory or other authority, of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 4 shall apply.
3.9 The Contract Price shall be increased by the amount of any GST and any other taxes and duties which may be applicable, except to the extent that such taxes or duties are already expressly included in the Contract Price.
4.1 In the event that the Owner requests a variation the Contractor will give the Owner a written variation document detailing the Works, the amended Contract Price, the estimated time to undertake the variation, and the likely delay to the Works (if any), and shall require written acceptance by the Owner of the variation before commencing any Works detailed in the variation.
4.2 The Contractor may (without having to specify any reason why) refuse to undertake any variation requested by the Owner.
4.3 In the event that the Contractor requests a variation (which the Contractor may only do if the variation is necessary due to circumstances that the Contractor could not have reasonably foreseen at the time this contract was entered into), then the Contractor will, in writing:
(a) state the reason for the variation; and
(b) provide a full description of the variation; and
(c) state any effect the variation will have on the contract, including but not limited to, the Contract Price, practical completion date and whether further permits or authorisations are required
4.4 Any adjustment to the Contract Price due to variation/s shall be allowed for at the time of the next progress payment claim by the Contractor.
4.5 Other than for the events outlined in clause 4.7 the Contractor shall obtain written acceptance by the Owner of any variation submitted by the Contractor before commencing work on the variation. The Owner must not refuse to accept any variation that is necessary in order for the Works to meet compliance with legal requirements.
4.6 The Contractor must allow a reasonable reduction to the building period if a variation reduces the amount of Works required in order to achieve practical completion.
4.7 The Contractor may carry out any necessary Works In the event of:
(a) unforeseeable problems with the Worksite which are only revealed when undertaking the Works, which the Contractor considers must be rectified for the safe completion of the Works; or
(b) any Works that the Contractor considers are required to be undertaken urgently and it is not reasonably practicable to obtain written acceptance from the Owner before commencing the variation; or
(c) the Contractor being instructed to undertake any extra Works by any person authorised by the Building Act 1975.
4.8 If the price for a variation is not agreed upon then the Owner will be charged at the Contractor’s actual cost plus the Contractor’s margin (i.e. an amount to cover the Contractor’s overheads, administrative costs, and profit) being twenty (20%) percent.
5.Provisional Sums and Prime Cost Items
5.1 For the purposes of this clause 5, the following words shall have their corresponding meanings:
(a) “Prime Cost Item” shall mean an item that either has not been selected, or the price of which is not known, at the time this contract is entered into, and for which the cost of supply, delivery and installation the Contractor must make a reasonable allowance for in this contract.
(b) “Provisional Sum” shall mean an estimate of the cost of carrying out particular Works under this contract for which the Contractor, after making all reasonable inquiries, cannot give a definite price at the time this contract is entered into.
5.2 If the Contractor advises the Owner that a Prime Cost Item which the Owner has selected is not available then the Owner must advise the Contractor in writing within five (5) working days of such notice of an alternative choice of item, failing which the Contractor shall be entitled on the Owner’s behalf to select an item of similar specification and quality as the unavailable item originally selected (providing detail of the same to the Owner). In the event that the Owner should object to the Contractor’s selection for any reason then the Owner must immediately notify the Contractor of the same and the Contractor shall be entitled to suspend the Works under clause 16 until either the original item becomes available or an alternative is selected by the Owner. Failure by the Owner to notify the Contractor that an alternative item is not acceptable will be taken as acceptance by the Owner of the alternative item.
5.3 If the actual cost of a Prime Cost Item or the actual cost of the Works for a Provisional Sum is less than the sum allowed for that item, then the difference shall be deducted from the Contract Price and shall be shown by the Contractor as part of the next progress payment claim.
5.4 If the actual cost of a Prime Cost Item or the actual cost of the Works for a Provisional Sum is greater than the sum allowed for that item, then the difference (plus the Contractor’s margin stated in Box P or Q. (each as is applicable to this contract) shall be added to the Contract Price and shall be claimed by the Contractor as part of the next progress payment claim.
5.5 In accordance with the Queensland Building Services Authority Act 1991 the Contractor is required to give the Owner a copy of any invoice or receipt relevant to any Provisional Sum or Prime Cost Item as soon as practicable after the Contractor receives the invoice or receipt for such items or at the time of submission of a progress payment claim.
6.1 If this contract is conditional upon the Owner obtaining a loan from an Australian financial institution then they shall provide the Contractor with written confirmation of the loan approval by the date specified in Box H above. Such written confirmation is to include confirmation from the financial institution that the Contractor may commence the Works.
6.2 The Owner shall authorise the Owner’s lender to, and the Owner’s lender may then, pay all monies advanced to the Owner for payment of the Contract Price of the Works (or any part thereof) and approved by the Owner direct to the Contractor.
6.3 In the event that any such loan application is declined then the Owner shall have the right to withdraw from this contract subject to the Owner providing the Contractor with written evidence within five (5) working days of the date specified in Box H above that the loan was declined. Upon receipt of such evidence the Contractor shall refund the Owner any deposit paid in accordance with clauses 35.8 and 35.9.
7.1 The Owner shall, prior to the commencement of the Works, deposit any Security Monies into an interest bearing account at a financial institution mutually agreed between the Owner and the Contractor. The account must be a joint account in the names of both the Owner and the Contractor and withdrawals shall require the signature of both of those parties.
7.2 It is agreed that Security Monies shall be used to pay progress payments to the Contractor before any loan monies are used to pay progress payments.
7.3 In the event that the Owner fails to pay any Security Monies due to the Contractor or the Contractor terminates this contract under clause 35 then the Contractor shall be entitled to Security Monies equivalent to any amount due and owing to the Contractor after having applied clauses 35.8 and 35.9.
7.4 After payment of the final progress payment to the Contractor any Security Monies remaining in the account (including any interest) shall belong to the Owner (including any interest earned thereon).
8.1 In the event that practical completion has not been achieved by the end of the building period specified in Box F (subject to any extension of the building period allowed under this contract) then the Owner shall be entitled to liquidated damages equivalent to the amount specified in Box J for each day after the building period that the Works remain uncompleted, continuing until either practical completion has been achieved or the Owner has taken possession of the Worksite whichever is the earliest.
8.2 Liquidated damages applied under this contract may only be deducted from the final progress payment specified in Box G, and in the event there is a shortfall then such shortfall shall become a debt due and payable by the Contractor to the Owner.
9.The Worksite and Worksite Access
9.1 The Owner must within ten (10) working days of signing this contract provide the Contractor with evidence to the Contractor’s satisfaction of the Owner’s title to the Worksite.
9.2 The Owner must within ten (10) working days of signing this contract provide the Contractor with evidence to the Contractor’s satisfaction of where all boundaries at the Worksite lie and where the Works are to be situated. If in the Contractor’s opinion such details are unclear then the Contractor may by written notification request the Owner to provide (at the Owner’s cost) a survey of the Worksite (to the extent deemed necessary) to satisfy the Contractor’s requirements. The survey is to be provided by the Owner within five (5) working days of the receipt of such notification failing which the Owner duly authorises the Contractor to arrange the survey themselves and the cost of the survey shall be deemed a variation, and the provisions of clause 4 shall apply.
9.3 As soon as is practical after the signing of this contract the Owner is to provide the Contractor with free and uninterrupted access to the Worksite and any existing buildings as is necessary for the Contractor to undertake the Works.
9.4 The person nominated in Box L is responsible for all costs involved in ensuring that access (under all usual weather conditions as may reasonably be expected) to the Worksite for all machinery and vehicles (as is reasonably required for the Works) is available whilst the Works are being undertaken by the Contractor. If the person nominated is the Owner and the Contractor is for any reason required to undertake any additional work to achieve the required access then this shall be deemed a variation, in addition to the Contract Price and clause 4 shall apply.
9.5 The Contractor shall not be liable for any damage to pathways, driveways, concreted, paved or grassed areas unless due to the negligence of the Contractor.
9.6 The Owner, or a third party authorised by the Owner, shall by supplying a written request to the Contractor have the right to reasonable access to the Worksite, and to view the Works provided always that:
(a) the Owner/third party must not interfere with or hinder the Contractor’s access to the Worksite or the progress of the Works;
(b) the Owner/third party must not access the Worksite without the Contractor’s approval;
(c) the Owner/third party must not make inquiry of, or issue any directive or instruction to, the Contractor’s employees or subcontractors and must communicate solely with the Contractor. Furthermore the Owner acknowledges and agrees that they shall not be entitled to rely on any statement or representation made by any of the Contractor’s employees or subcontractors unless confirmed in writing by the Contractor;
(d) access shall only be allowed during standard working hours and under the Contractor’s supervision;
(e) the Owner/third party agrees to comply with the following obligations under the Workplace Health and Safety Act 1995;(i) to comply with all instructions given by the Contractor regarding workplace health and safety requirements at the Worksite pursuant to the Workplace Health & Safety Act 1995;
(ii) not to interfere with any workplace health and safety equipment, manuals, or signage at the Worksite;
(iii) not to place at risk the health and safety of any person (or themselves) at the Worksite;
(iv) not to wilfully injure themselves or any other person.
9.7 In the event that the Owner, or a third party authorised by the Owner shall fail to comply with clause 9.6 then the Contractor may exclude or remove that person from the Worksite, and further the Owner agrees to indemnify the Contractor against:
(a) any liability, loss, claim, or legal action in respect of injury to any person, or loss of, or damage to, any property at the Worksite (howsoever arising) as a direct result of the Owner/third party’s non-compliance; and
(b) all additional costs or losses incurred by the Contractor (howsoever arising) as a direct result of the Owner/third party’s non-compliance. The Contractor must claim all such costs (which shall be in addition to the Contract Price) by giving written notice to the Owner within five (5) working days of becoming aware that such additional or losses have been incurred.
10.Planning and Building Approvals
10.1 The party specified in Box M above is responsible for, and shall promptly obtain (taking all reasonable and necessary steps and at their own cost), all building approvals and consents (whether statutory or otherwise) that are necessary to enable the Contractor to commence Works at the Worksite.
10.2 If the Contractor is the person specified in Box M then the Owner agrees to give the Contractor all possible assistance, and to sign all necessary document/s, to enable the Contractor to obtain the necessary consents and approvals in a timely manner.
10.3 All consents and approvals are to be obtained by the specified commencement date where possible, but must be obtained no later than within thirty (30) working days of the signing of this contract, failing which the parties to this contract shall (without liability to the other, except as is specified in clause 10.4) be entitled to suspend or terminate this contract by giving written notice to the other party.
10.4 Where the Contractor opts to suspend this contract under clause 10.3 then clause 16 shall apply.
10.5 Where the Contractor opts to terminate this contract under clause 10.3 then clause 35, (in particular 35.8 and 35.9) shall apply.
11.Provision of Works
11.1 Subject to clause 11.2, it is the Contractor’s responsibility to ensure that the Works commence as soon as it is reasonably possible. Therefore the Works shall commence on or before the date specified as the commencement date in Box F above otherwise the Works shall commence within ten (10) working days of the latest date that the Owner has complied with clauses 6.1, 7.1, 9.1, 9.2, 10.3, (each as applicable to this contract).
11.2 The Works commencement date will be put back and/or the building period extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Owner written notice) where practical completion will be delayed by any event beyond the Contractor’s reasonable control (or which was not foreseeable at the time this contract was entered into), including, but not limited to:
(a) a variation being requested by either the Owner or Contractor;
(b) a calculable delay in excess of the period allowed for and specified in Box F (but only to the extent of the actual delay in excess of the period already allowed);
(c) a force majeure event as per clause 39.13 (but only for the period that the force majeure event affects the Works);
(d) any dispute with adjoining residents (including tenants), neighbours, or owners;
(e) any act, omission, or default of the Owner (including the failure of the Owner to agree to, or sign a variation, or to comply with clauses 6.1, 7.1, or 9.1);
(f) any delay in the supply or manufacture of Materials required for the Works;
(g) delays in receiving consent/s and/or approvals beyond the period specified in clause 10.3;
(h) delay by the Owner in making a selection;
(i) a survey is required as per clause 9.2.
11.3 Nothing in this contract shall have the effect of limiting or preventing the Contractor from claiming more than one extension of time for a delay specified in clause 11.2.
11.4 If the Owner disputes any extension of time, the Owner must provide the Contractor with written notification specifying the reason for the dispute of the time extension requested, and such notification is to be provided to the Contractor within five (5) working days of the Owner receiving the Contractor’s time extension request. Lack of advice from the Owner to the contrary shall mean that the Owner has accepted the Contractor’s time extension request.
11.5 The Contractor shall within five (5) working days of commencement of the Works confirm to the Owner in writing the actual date that the Works commenced and the expected date for practical completion.
12.1 The Works shall be deemed to be practically completed (subject to the following clauses) when:
(a) the home or detached dwelling is reasonably suitable for habitation; and
(b) the Works carried out under this contract have been completed without any major omissions or defects in accordance with the plans and specifications set out in this contract; and
(c) all statutory requirements have been met; or
(d) the Owner takes possession of the Worksite
12.2 The Contractor shall upon reaching practical completion provide the Owner with:
(a) written notice that the Works have been practically completed, and the date of the same;
(b) the Contractor’s final payment claim;
(c) notice that a final inspection of the Works is required and a date and a time when this is to take place;
(d) any certificates or approvals that the Contractor was required to obtain on the Owner’s behalf under this contract.
12.3 The Owner shall, if unable to attend the final inspection when scheduled by the Contractor, immediately contact the Contractor and arrange a mutually acceptable time for the inspection to occur. The inspection must be scheduled to take place within the Contractor’s normal working hours and within five (5) working days of the original date specified by the Contractor.
12.4 In the event that the Owner fails to attend a final inspection as is arranged then it shall be deemed that the Owner has accepted the Works as being practically completed and shall pay the Contractor’s final payment claim in accordance with the terms of this contract.
12.5 If at the final inspection the Owner agrees that no defects exist then the Owner shall sign a notice to that effect and shall pay the Contractor’s final payment claim in accordance with the terms of this contract.
12.6 If at the final inspection the Owner claims that defects exist and/or that there are any omission/s to the Works then the Contractor shall give the Owner a defects document that:
(a) lists the minor defects and minor omissions that both the Contractor and Owner agree exist; and
(b) states by when the Contractor is to correct the listed defects and omissions; and
(c) lists the minor defects and omissions the Owner claims exist, but that are not agreed by the Contractor to exist; and
(d) is signed by the Contractor.
12.7 The Contractor shall, within the time period stated in the defects document, rectify any defect or correct any omission, notwithstanding which if there is any delay in the supply of required Materials then the Owner shall allow the Contractor a reasonable period in which to supply the same. The Contractor shall remain entitled to make a final payment claim so long as the Contractor has made all reasonable efforts to have the Owner sign the defects document to acknowledge its contents.
12.8 Payment of a final progress payment claim shall mean that the Owner discharges the Contractor of any further obligations under this contract (excluding clauses 13, 31.1 and 31.2) except as may be required by the QBCC Act or any other law. Upon receipt of the final progress payment the Contractor must quit the Worksite at the Contractor’s own expense (including removing any of the Contractor’s rubbish or surplus Materials) and shall hand any keys to buildings on the Worksite to the Owner.
13.Defects Liability Period
13.1 The Contractor agrees to rectify (at the Contractor’s own cost) any defect in the Works that are due to the faulty workmanship of the Contractor, defective Materials having been supplied by the Contractor, or Works not being performed by the Contractor in accordance with this contract, that becomes evident and which the Contractor is notified of within the period specified in Box O above.
13.2 The Contractor is to rectify any such defects or omissions notified to the Contractor in accordance with clause 13.1 within twenty (20) working days of receipt of such notice, and the Owner must give the Contractor reasonable access to the Worksite for that purpose.
14.Possession of the Worksite
14.1 The Owner shall not be entitled to take possession of the Worksite (or any part thereof), or to receive any keys to buildings on the Worksite until the Contractor has been paid the Contract Price in full (subject to any price adjustments made in accordance with this contract), unless the Contractor has otherwise agreed in writing.
14.2 If the Owner takes possession of the Worksite at any time other than in accordance with clause 14.1 then the Works shall be deemed to be practically completed and clauses 12.2 to 12.8 and 35.8 and 35.9 shall immediately apply. For the sake of clarity if this clause becomes applicable then the Contractor shall be relieved of all liability or obligation in regards to all Works that are uncompleted or were yet to be performed under this contract.
15.Materials, Documents and Works Supplied by the Owner
15.1 The Owner:
(a) warrants that any documentation supplied for the Works and the content or methods therein are accurate and/or suitable to be used for the purpose for which the document/s were created;
(b) agrees that it is reasonable for the Contractor to rely on the documentation;
(c) agrees to supply the Contractor with as many copies of the documentation as the Contractor may reasonably need to perform the Works or to obtain any necessary approvals required for the Works.
15.2 The Owner agrees that all materials and works supplied by the Owner or the Owner’s third party subcontractors will:
(a) be performed or supplied in accordance with all legislative requirements (including, but not limited to, the QBCC Act and Work Health and Safety legislation);
(b) be suitable for their inclusion into the Works;
(c) be completed to the Contractor’s requirements.
15.3 The Contractor may, where the Contractor believes that any materials or works supplied by the Owner or any third party employed by the Owner are defective, require that the defective materials be replaced or require such works as are considered defective to be removed, repaired or replaced, the costs of which shall be the Owner’s responsibility.
15.4 Notwithstanding clause 15.3 the Contractor shall have no liability whatsoever in terms of the performance of, or suitability of, any materials or works supplied by either the Owner or any third party employee of the Owner.
15.5 In the event that the Owner undertakes or employs any third party to undertake any works at the Worksite whilst the Contractor is undertaking Works then the Owner must ensure that the Owner and/or any third party so employed:
(a) is appropriately licensed for the works being undertaken, and will provide evidence of the same upon request by the Contractor;
(b) does not interfere with the progress of Works by the Contractor;
(c) holds all relevant insurances as the Contractor is required to hold or as are otherwise required under this contract;
(d) co-operates with all requests or directives of the Contractor in relation to the timeliness and co-ordination of works to be performed;
(e) co-operates as may be reasonably expected with all other persons on the Worksite;
(f) discusses any Worksite issues directly with the Contractor and not with any of the Contractor’s employees.
15.6 In the event that the Owner or the Owner’s third party employees do not comply with clauses 15.3 or 15.5 then the Contractor may require the non-compliant party to either leave and/or stay off the Worksite as the Contractor may so direct.
15.7 If the Owner breaches this clause then the Contractor may (at the Contractor’s sole discretion) either:
(a) carry on the Works without incorporation of any Owner supplied materials or works;
(b) suspend the carrying out of the Works as per clause 16;
(c) terminate this contract in accordance with clause 35.
16.1 It is the intention of the Contractor and agreed by the Owner that:
(a) the Worksite will comply with all Queensland work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(b) the Owner acknowledges and accepts that in the event asbestos or any other toxic substances are discovered at the property that it is their responsibility to ensure the safe removal of the same. The Owner further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product;
(c) where the Contractor requires that Materials, plant, tools etc. required for the Works be stored at the site, the Owner shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Owner’s responsibility;
(d) the Owner agrees to remove any furniture or personal items from the vicinity of the Works, and agrees that the Contractor shall not be liable for any damage caused to those items through the Owners failure to comply with this clause;
(e) the Contractor takes no responsibility for animals or children on the Worksite, and it is the Owner’s responsibility to ensure that all animals and children are safely secured;
(f) the Contractor is not responsible for the removal of rubbish from or clean-up of the Worksite; this is the responsibility of the Owner;
(g) the Owner will supply electricity, temporary lighting, toilet, eating and first aid facilities if so required.
17.Suspension of the Works
17.1 In the event that the Owner fails or refuses to comply with an obligation specified in this contract then the Contractor shall be entitled (without prejudice to any other rights of the Contractor under this contract) to suspend the Works. Where the Contractor intends to suspend the Works under the provision of this clause, the Contractor must immediately notify the Owner of the same in writing detailing the reasons for the suspension. The building period shall then be deemed to be suspended by a period equivalent to the period that commences from the date the notice was given to the Owner by the Contractor continuing until the Contractor recommences Works.
17.2 The Owner must remedy all breaches listed in the Contractor’s suspension notice within ten (10) working days of receipt of such notice.
17.3 The Contractor shall within ten (10) working days of confirmation that the breaches listed in the suspension notice have been remedied by the Owner, recommence the Works.
17.4 In the event that the Contractor incurs any additional cost as a result of suspending and/or recommencing the Works then all such additional costs will be deemed as being in addition to the Contract Price and treated as a variation in accordance with clause 4.
17.5 For the sake of clarity nothing in this clause 16 shall prevent the Contractor’s right to terminate this contract in accordance with the provisions of clause 35.
18.Contract Documents – Discrepancies and Ambiguities
18.1 If either party to this contract finds any discrepancy or ambiguity in this contract or any other documentation forming part of this contract then that party must immediately notify the other party of the same in writing. Upon receipt of such notice it is agreed that both parties shall confer with each other in an attempt to resolve the discrepancy or ambiguity and where necessary the order of precedence specified in clause 39.15 shall apply.
18.2 If the parties cannot reach resolution over the discrepancy or ambiguity then either:
(a) the matter is to be resolved in accordance with clause 37; or
(b) the Owner must give to the Contractor sufficient written instruction to enable the Contractor to proceed with the Works.
18.3 If, as a consequence of resolution under this clause 18, the Contract Price needs to vary and the problem that was resolved was not caused solely by documents provided by the Contractor then any price adjustment shall be deemed a variation and the Contractor shall provide to the Owner a variation document in compliance with clause 4 above.
19.1 The Contractor shall:
(a) in respect of its employees meet all current requirements of the Workers’ Compensation & Rehabilitation Act 2003;
(b) meet all current requirements of the Queensland Building Services Authority Act 1991;
(c) maintain during the course of the Works a Contract Works Insurance policy in the name of the Contractor, the Owner and the Owner’s lender (if required) for the full insurable value of the Works, such policy to remain in place until practical completion takes place or the Owner takes earlier possession of the Worksite.
(d) maintain during the Works, Public Liability Insurance cover of not less than five million dollars ($5M) for any one occurrence and which covers liabilities to third parties in respect of personal injury, death and loss or damage to property which may arise out of or in connection with the carrying out of the Works.
(e) provide such Home Warranty Insurance as is required under the QBCC Act.
(f) provide evidence of all or any of the above policies to the Owner upon request.
(g) not have any liability in terms of any loss, claim, damage, or legal action howsoever arising in respect of any materials or other property placed on the Worksite without the Contractor’s knowledge and/or written approval.
19.2 The insurance referred to in clause 19.1 shall be held with a reputable Australian insurer, in the discretion of the Contractor.
19.3 If the Works involve the repair, alteration, or any addition to an existing building then the Owner shall effect and maintain during the course of the Works insurance cover for the full replacement value of any buildings which will be affected by the Works (including the contents thereof) against loss, damage and all other usual risks, and shall provide evidence of the currency of the insurance to the Contractor upon request. Such cover is to be provided by the Owner until practical completion or the Owner takes total possession of the Worksite whichever first occurs.
20.1 For the sake of clarity, the Contractor shall not be liable for loss or damage to the Works once they have reached practical completion or if the Owner takes possession of the Worksite, and all risk shall pass to the Owner as soon as either completion or possession occurs.
20.2 Not withstanding clause 19, all works or materials supplied by the Owner or the Owner’s subcontractors at or to the Worksite shall be at the sole risk of the Owner.
20.3 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Owner, the Contractor is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
20.4 Where the Owner has supplied Materials for the Contractor to complete the Works, the Owner acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Materials. The Contractor shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of Materials supplied by the Owner.
20.5 Detailed drawings of any services that will be embedded in the Materials are to be provided to the Contractor prior to commencement of any Works. Whilst all due care will be taken no liability will be accepted by the Contractor for damage to the services or any other element embedded in the Materials.
20.6 Where the Contractor is contracted to remove existing Materials from a structure and discovers weather-tightness/dampness issues that require other tradespeople or insurance assessment, the Contractor reserves the right to halt the Works, and invoice the Owner for Works already completed, until the time that the Contractor is satisfied that remedial work is completed to a standard suitable for the Works to be completed to a reasonable standard.
20.7 The Owner acknowledges and accepts that where the Contractor has been requested to repair existing structures and/or Materials, evidence of that repair may be apparent after completion of the Works
20.8 The Contractor shall not be liable for any defect in the Works and/or Materials if the Owner does not follow the Contractor’s and/or the manufacturer’s recommendations.
20.9 The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Owner. The Owner acknowledges and agrees that in the event that any of this information provided by the Owner is inaccurate, the Contractor.
20.10 The Owner acknowledges that variations of colour and texture are inherent in the Materials. The Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product.
20.11 The Owner acknowledges that Materials supplied may:
(a) fade or change colour over time;
(b) expand, contract or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances;
(d) be damaged or disfigured by impact or scratching.
20.12 Timber is a hydroscopic material subject to expansion and contraction, therefore the Contractor will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
21.1 Where the Contractor gives advice or recommendations to the Owner, or the Owner’s agent, regarding the suitability of the Worksite for the laying of concrete slabs, foundations or similar Works and such advice or recommendations are not acted upon then the Contractor shall require the Owner or their agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
21.2 The Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
(a) hairline cracking of paving and grout;
(b) damage caused by contact with chemicals, solvents, oils or any other substances;
(c) the effects by elements such as heat exposure or wet weather conditions that prolong the curing process.
(d) the Owner acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of re pair or replacement shall be borne by the Owner.
21.3 The Contractor shall not be liable for any defect in the Works if the Owner does not follow the Contractor’s recommendation to:
(a) water the concrete for a periodically to limit the risk of possible cracking due to weather conditions;
(b) no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(c) no heavy furniture to be placed on the concrete area for a minimum of twenty-four (24) hours.
21.4 The Owner shall supply an area suitable for washing out the Contractor’s equipment and for depositing all unused concrete and slurry.
22.Painting & Plastering
22.1 The Contractor offers no guarantee against the following defects or damage that may occur naturally in the Works over time:
(a) cracking of paint over plaster where the wrong paints are used for coating;
(b) delaminating of the plaster caused by hydroscopic movement or dampness in the substrate;
(c) the occurrence of efflorescence and any detrimental effects this has on the appearance of the Works;
22.2 The Contractor shall not be liable whatsoever for:
(a) inferior existing paintwork where the Contractor’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish;
(b) any defect in the Works if the Owner does not follow the Contractor’s recommendations;
(c) the quality of the Works if the Owner does not follow the Contractor’s recommendations as to the number of coats of paint required to obtain the final finish if the Owner chooses to accept a reduced Price based on fewer coats of paint;
(d) any loss or damage to the Works that is caused by any other tradesmen;
(e) damage caused by contact with chemicals, solvents, oils or any other substances;
(f) pealing or flaking caused by the environment or any other external factors.
22.3 The Owner acknowledges and agrees that where the Contractor has been contracted to perform cosmetic repairs (e.g. repair surface cracking) on textured or plastered surfaces:
(a) the Contractor is in no way remedying or repairing any damage or moisture ingress that may have been resultant, or could result, from the cracking; and
(b) such repairs are in no way a guarantee (express or implied) of water tightness, and must not be considered such by the Owner.
23.1 The Owner shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
23.2 It is the responsibility of the Owner to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by the Contractor.
23.3 The Owner agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors and/or agents.
24.1 Where the Owner specifies an agent in Box N of this contract then the agent shall be deemed to be acting on behalf of and with the full authority of the Owner and shall be responsible for all acts, errors, omissions, directions, instructions or requested variations as if they were the actions of the actual Owner. Where requested by the Contractor the Owner’s agent shall confirm any directions, instructions or requested variations in writing which documentation shall be signed by the Owner’s agent.
24.2 The Owner may with the written consent of the Contractor change the Owner’s agent at any time.
25.1 Prior to the Contractor commencing the Works, the Owner must advise the Contractor of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Owner must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telecommunications cables, fibre optic cables, oil pumping mains, and any other services that may be on Worksite.
25.2 Whilst the Contractor will take all care to avoid damage to any underground services the Owner agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 25.1.
26.1 Unless otherwise stated elsewhere in this contract:
(a) only suitable new Materials will be used;
(b) demolished materials remain the Owner’s property; and
(c) Materials which the Contractor brings to the Worksite which are surplus remain the property of the Contractor unless such Materials have been paid for by the Owner.
27.Foundations Data and Latent Conditions
27.1 This clause applies if the Works:
(a) require the construction or alteration of footings, or a concrete slab, for a building; or
(b) may adversely affect the footings of a building or a concrete slab forming part of a building.
27.2 Before entering into the contract, the Contractor must obtain the foundations data that is appropriate for the Worksite, having regard to the following:
(a) the Building Code of Australia;
(b) the need for a drainage plan;
(c) the need for engineer’s drawings and computations;
(d) the need for information on the fall of the land at the Worksite.
27.3 Nothing in clause 27.2 requires the Contractor to commission the preparation of foundations data to the extent the data already exists and it is reasonable for the Contractor to rely on the data.
27.4 The Contractor must give a copy of any foundations data obtained by the Contractor in compliance with this clause 27 to the Owner on payment by the Owner of the costs incurred by the Contractor in obtaining the data.
27.5 Clause 27.4 shall not be applicable if:
(a) the data is given to the Contractor by the Owner; or
(b) the Contractor reasonably believes the Owner already has a copy of the data.
27.6 The Contractor cannot seek from the Owner an amount not already provided for in the contract if:
(a) the Contractor entered into the contract before obtaining the foundations data under clause 27.2; and
(b) the need for the additional amount could reasonably have been established, and the amount calculated, had the Contractor complied with clause 27.2.
27.7 For clause 27.6, an amount is not taken to be provided for in this contract only because the contract contains a provision allowing for an increase to be made in the Contract Price.
27.8 Nothing in this clause 27 prevents the Contractor from claiming an amount not provided for in the contract if:
(a) the Contractor has complied with clause 27.2; and
(b) the need for the additional amount cannot be established from the foundations data obtained by the Contractor.
27.9 The Contractor shall immediately on discovery of any latent condition at the Worksite, advise the Owner of the nature of the condition and detail all the additional costs or Works required to rectify the condition (including any likely delays). Where the Owner is responsible under this contract for additional costs due to latent conditions such notification shall be in the form of a variation which shall comply with clause 4 herein.
27.10 Where the Contractor is responsible for additional costs due to latent conditions, the Contractor shall not be liable for those costs if the Works required to rectify the condition have already been allowed for in this contract as a Provisional Sum.
28.1 It is the intention of the Contractor and agreed by the Owner that ownership of Materials shall not pass until:
(a) the Owner has paid all amounts owing for the particular Materials; and
(b) the Owner has met all other obligations due by the Owner to the Contractor in respect of all contracts between the Contractor and the Owner.
28.2 Receipt by the Contractor 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 Contractor’s ownership or rights in respect of Materials, and this contract, shall continue.
28.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Contractor shall have received payment and all other obligations of the Owner are met; and
(b) until such time as ownership of the Materials shall pass from the Contractor to the Owner the Contractor may give notice in writing to the Owner to return the Materials or any of them to the Contractor. Upon such notice the rights of the Owner to obtain ownership or any other interest in the Materials shall cease; and
(c) the Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Owner fails to return the Materials to the Contractor then the Contractor or the Contractor’s agent may (as the invitee of the Owner) enter upon and into land and premises owned, occupied or used by the Owner, or any premises where the Materials are situated and take possession of the Materials.
29.Personal Property Securities Act 2009 (“PPSA”)
29.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Owner and the Contractor by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
29.2 Upon assenting to these terms and conditions in writing the Owner acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Materials previously supplied (if any), and that will be supplied in the future, by the Contractor to the Owner;
(ii) any monetary obligations owed by the Owner to the Contractor for the provision of the Works.
29.3 The Owner undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 26.3(a)(i) or 26.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or Works in favour of a third party without the prior written consent of the Contractor; and
(e) immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
29.4 The Contractor and the Owner agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
29.5 The Owner hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
29.6 The Owner waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
29.7 Unless otherwise agreed to in writing by the Contractor, the Owner waives its right to receive a verification statement in accordance with section 157 of the PPSA.
29.8 The Owner shall unconditionally ratify any actions taken by the Contractor under clauses 29.3 to 29.5.
29.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
30.Security and Charge
30.1 In consideration of the Contractor agreeing to provide the Works, the Owner charges all of its rights, title and interest (whether joint or several) in any land (excluding any land specified in section 43 of the QBCC Act), realty or other assets capable of being charged, owned by the Owner either now or in the future, to secure the performance by the Owner of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
30.2 The Owner indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
30.3 The Owner irrevocably appoints the Contractor, and each director of the Contractor, as the Owner’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 30 including, but not limited to, signing any document on the Owner’s behalf.
31.1 To the extent required by the QBCC Act, the Contractor warrants that:
(a) the Works shall be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract schedule;
(b) all Materials supplied will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those Materials will be new;
(c) the Works will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, the Building Act 1975, Sustainable Planning Act 2009, the Electrical Safety Act 2002, and the Plumbing and Drainage Act 2002);
(d) the Works will be carried out in an appropriate and skilful way, with reasonable skill and care;
(e) the Works will be carried out in accordance with the plans and the specifications to this contract;
(f) if the Works consists of the construction of a detached dwelling or are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, that the detached dwelling or home will be suitable for occupation when the Works are finished;
(g) if the contract states the particular purpose for which the Works are required, or the result which the Owner wishes the Works to achieve (so as to show that the Owner relies on the Contractor’s skill and judgment) then the Works and any Materials will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result; and
(h) the 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 Worksite).
31.2 Clause 31.1(b) does not apply if the Contractor is subject to the direction of the Owner’s architect for the supply of Materials, or the Owner is responsible for nominating the Materials and either:
(a) there are no reasonable grounds for not using the Materials; or
(b) there are reasonable grounds for not using the Materials and the Contractor advises the Owner of such in writing and the Owner still insists on the Materials been being used.
31.3 The following conditions are applicable to the warranties given above:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Owner to properly maintain the Works; or
(ii) failure on the part of the Owner to follow any instructions or guidelines provided by the Contractor; or
(iii) the continued use of the Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(iv) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the Contractor’s workmanship is repaired, altered or rectified without the Contractor’s consent.
(c) in respect of all claims the Contractor shall not be liable to compensate the Owner for any delay in either replacing or repairing the workmanship or in properly assessing the Owner’s claim.
31.4 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
32.Competition and Consumer Act 2010 (Cth), Queensland Building and Construction Commission Act 1991 (QBBC Act), Building Act 1975, Sustainable Planning Act 2009 and Fair Trading Acts
32.1 Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Competition and Consumer Act 2010, Queensland Building and Construction Commission Act 1991, Building Act 1975, Sustainable Planning Act 2009 or the Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
33.1 Where the Contractor has designed, drawn or written plans or a schedule of Works for the Owner, then the copyright in those plans, schedules, designs and drawings shall remain vested in the Contractor, and shall only be used by the Owner at the Contractor’s discretion.
33.2 The Owner warrants that all designs or instructions to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Owner’s order.
33.3 The Owner hereby authorises the Contractor to utilise images of the Works designed or drawn by the Contractor in advertising, marketing, or competition material by the Contractor.
34.Default and Consequences of Default
34.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
34.2 If the Owner owes the Contractor any money the Owner shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
34.3 Further to any other rights or remedies the Contractor may have under this contract, if the Owner has made payment to the Contractor, and the transaction is subsequently reversed or cancelled, the Owner shall be liable for the amount of the reversed or cancelled transaction, in addition to any further costs incurred by the Contractor under this clause 34, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Owner’s obligations under this contract.
34.4 Without prejudice to any other remedies the Contractor may have, if at any time the Owner is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the provision of Works to the Owner. The Contractor will not be liable to the Owner for any loss or damage the Owner suffers because the Contractor has exercised its rights under this clause.
34.5 Without prejudice to the Contractor’s other remedies at law, the Contractor shall be entitled to cancel all or any part of the Works which remains unperformed and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
(a) the Owner becomes unable to pay their debts or bankrupt; or
(b) enters into an arrangement with, or makes an assignment for the benefit of their creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of any asset of the Owner.
35.1 Neither party to this contract may terminate the contract if that party is themselves in substantial breach of this contract (i.e. that party fails or refuses to perform a substantial obligation under this contract).
35.2 The Owner may serve notice of their intent to terminate this contract if the Contractor:
(a) fails to perform the Works in a competent or diligent manner;
(b) suspends the Works for any reason other than is allowed under this contract;
(c) refuses to replace any defective Materials or remedy any defective Works so as to negatively impact on the Works;
(d) has the Contractor’s licence cancelled or suspended;
(e) fails to effect or maintain any insurance that is required under this contract;
(f) fails or refuses to complete the Works or abandons this contract;
(g) is otherwise in substantial breach of this contract.
35.3 If the Owner serves notice on the Contractor under clause 35.2 then such notice must:
(a) include full details of the alleged breach or breaches; and
(b) state that it is the Owner’s intention to terminate the contract unless the Contractor has remedied all such breaches within ten (10) working days of receipt by the Contractor of such notice.
35.4 To end the contract under clause 35.2, the Owner must give the Contractor a signed notice stating that the Owner is terminating the contract in accordance with the QBBC Act, and giving details of the grounds under which the contract is being terminated.
35.5 The Contractor may serve notice of their intent to terminate this contract if the Owner:
(a) fails to comply with the Owner’s obligations under clauses 3, 4, 6, 7, 9, 10, 14, 15, 16, 18, or 19 (each as applicable to this contract);
(b) is otherwise in substantial breach of this contract.
35.6 If the Contractor serves notice on the Owner under clause 35.5, then such notice must:
(a) include full details of the alleged breach or breaches; and
(b) state that it is the Contractor’s intention to terminate the contract unless the Owner has remedied all such breaches within ten (10) working days of receipt by the Owner of such notice.
35.7 If either party to this contract is given notice by the other party to this contract that they are in substantial breach of this contract and does not rectify or attempt to substantially rectify any breach stated in the notice within ten (10) working days of receiving such notice then the party giving the notice may by giving a separate notice to the other party terminate this contract.
35.8 If the contract is ended under this clause 35, the Contractor is entitled to a reasonable amount for any Works already carried out, plus any other costs incurred by the Contractor as a result of, or prior to, the termination of the contract, including, but not limited to:
(a) the cost of any Materials already purchased for the Works, or ordered from the Contractor’s suppliers which cannot be returned to the Contractor’s suppliers, or for which the order cannot be cancelled;
(b) any restocking fees charged by the Contractor’s suppliers;
(c) any additional costs incurred by the Contractor through having to quit the Worksite early;
(d) the Contractor’s margin (i.e. twenty percent (20%)) on any monies that become due and payable as a result of the application of this clause 35.8, excluding sub-clauses (b) and (e);
(e) any default interest, fees or charges that the Contractor is entitled to charge, or incurs, under clause 34.
35.9 Notwithstanding clause 35.8, where the Contractor has already taken a deposit from the Owner and the deposit amount is in excess of the monies to which the Contractor is entitled under clause 35.8, then the Contractor agrees to refund all monies in excess of the amount due to the Contractor to the Owner within five (5) working days of the termination of this contract.
35.10 Either the Owner or the Contractor may terminate this contract upon written notice if the other party:
(a) becomes insolvent or is unable to pay their debts;
(b) commits an act of bankruptcy or is made bankrupt;
(c) assigns assets for the benefit of creditors generally;
(d) makes a composition or other arrangement with creditors; or
(e) enters into liquidation or receivership.
36.Privacy Act 1988
36.1 The Owner agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Owner in relation to credit provided by the Contractor.
36.2 The Owner agrees that the Contractor may exchange information about the Owner with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Owner; and/or
(b) to notify other credit providers of a default by the Owner; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Owner is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Owner including the Owner’s repayment history in the preceding two (2) years.
36.3 The Owner consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
36.4 The Owner agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Owner’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Owner; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
36.5 The Contractor may give information about the Owner to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Owner including credit history.
36.6 The information given to the CRB may include:
(a) personal information as outlined in 36.1 above;
(b) name of the credit provider and that the Contractor is a current credit provider to the Owner;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Owner’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Owner no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Contractor, the Owner has committed a serious credit infringement;
(h) advice that the amount of the Owner’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
36.7 The Owner shall have the right to request (by e-mail) from the Contractor:
(a) a copy of the information about the Owner retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal information about the Owner for the purpose of direct marketing.
36.8 The Contractor will destroy personal information upon the Owner’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
36.9 The Owner can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Owner is not satisfied with the resolution provided, the Owner can make a complaint to the Information Commissioner at www.oaic.gov.au.
37.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within ten (10) working days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to the Queensland Civil and Administrative Tribunal (QCAT).
37.2 Where there is any dispute between the parties, whether relating to overdue payment or otherwise then the Owner agrees not to contract any third party to replace the Contractor as their provider of the Works to be provided under this contract until the dispute resolution process in clause 37.1 has been completed, and then only if QCAT has found against the Contractor in its determination, and the Contractor is unable or unwilling to resolve, rectify or correct the issues that have led QCAT to find against the Contractor.
38.Service of Notices
38.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;.
(b) by leaving it at the address of the other party as stated in this contract;.
(c) by sending it by registered post to the address of the other party as stated in this contract;.
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any),on receipt of confirmation of the transmission;.
(e) if sent by email to the other party’s current email address.
38.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post the notice would have been delivered.
39.1 For the purposes of this contract a “working day” shall mean any day which is not a Saturday, Sunday, public holiday, special holiday, or a bank holiday in the state in which this contract is applied. If the giving of any notice, the making of any payment, or the doing of any act required or permitted under this contract, the timing of which falls on a day which is not a working day, then the timing for such actions shall be extended and will be allowed to take place on the next working day, but no later.
39.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
39.3 If any provisions of this contract are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
39.4 This contract shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
39.5 Subject to clause 8, the Contractor shall be under no liability whatever to the Owner for any indirect loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach by the Contractor of this contract.
39.6 Subject to clause 31, in the event of any breach of this contract by the Contractor the remedies of the Owner shall be limited to damages (including (where applicable) liquidated damages under clause 8) which under no circumstances shall exceed the Contract Price.
39.7 The Owner shall not be entitled to set off against or deduct from the Contract Price any sums owed or claimed to be owed to the Owner by the Contractor, nor to hold any retention/s for defect or omissions.
39.8 Where more than one Owner has entered into this contract, the Owners shall be jointly and severally liable for all payments of the Contract Price.
39.9 None of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Contractor in writing nor is the Contractor bound by any such unauthorised statements.
39.10 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Owner’s consent.
39.11 The Owner cannot licence or assign without the written approval of the Contractor.
39.12 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Owner agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
39.13 The Owner agrees that the Contractor may review this contract by notifying the Owner in writing. If, following any such review, there is to be any change to this contract, then that change will take effect from the date on which the Owner accepts such changes, or otherwise at such time as the Owner makes a further request for the Contractor to provide Works to the Owner.
39.14 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, storm, industrial dispute, civil unrest, or other event beyond the reasonable control of either party.
39.15 The special conditions in Box V above (if any), the terms of this contract, the specifications, the plans, and any other documents have precedence in that order if there is any inconsistency or ambiguity between them. Figured dimensions shall have precedence over scaled dimensions.