1. Quotes

1.1 Contractor Supply Quote

  1. The Contractor shall give the Customer a quotation specifying the work required to be done in order to fulfil the Customer’s instructions (Quote) and an estimate of the Contractor’s charge for the performance of such work.
  2. The Quote is given by the Contractor on the basis of acceptance by the Customer within 30 days of the date of the Quote and is subject to the right of withdrawal or revision before acceptance. If any changes occur to the work, or charges applicable to the work, the subject of the Quote, then the Quote shall be subject to revision accordingly whether with or without notice to the Customer.
  3. The Contractor or Customer may add to, delete or otherwise change the Works by giving written notice to the other party. Such variations to the Works take effect upon the giving of such a notice.
  4. Where the Works are varied, the Contractor may, at his sole discretion, vary or withdraw the Quote or issue a new Quote for the varied Works.

1.2 Acceptance by the Customer

  1. Where the Contractor has given the Customer a Quote, the Contractor need not commence work until the Quote has been accepted by the Customer.
  2. The Customer shall accept the Quote by:
    1. signing and returning a copy of the Quote; and/or
    2. by instructing the Contractor to commence the work.
  3. A signed facsimile or scanned copy of the Quote will be binding for the purposes of these terms and conditions.
  4. Quotes are valid for thirty (30) days only, unless an extension has been authorised by the Contractor.
  5. In acceptance of the Quote, the Customer warrants that it has not relied on any representation by the Contractor other than as supplied in writing in the Quote.

1.3 Cancellation

The Customer shall reimburse the Contractor for any costs, expenses or losses incurred by the Contractor should the Customer cancel an accepted Quote. The time for payment for such cancellation shall be seven (7) days from the Contractor’s invoice.

1.4 Deposit

The Contractor may require a deposit from the Customer, and if a deposit is so requested by the Contractor the Customer acknowledges the Contractor is under no obligation to undertake the Work until the deposit is received by the Contractor in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Contractor on the part of the Customer, the Contractor shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to the Contractor at law or in equity.

2. Site access

The Customer shall ensure that the Contractor has clear and uninterrupted access to the Site until the Work has been completed and the Contractor paid in full.

3. Prolongation

Should the Work at the Site be delayed for reasons beyond the Contractor’s control, then the Customer shall indemnify the Contractor for any increased costs, losses or expenses due to such prolongation.

4. Relationship with Subcontractors

  1. The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. The Customer 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.
  2. The Client agrees that the Contractor will not be liable for the acts and omissions of any of the Contractor’s sub-contractors.

5. Goods

5.1 Delivery

Delivery of any goods required to complete the Work shall be made to the Site. The Customer shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery. Delivery of goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement. The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated. The Contractor shall not be liable for any loss or damage whatever due to the failure by the Contractor to deliver the goods (or any part of them) promptly or at all.

5.2 Title

It is agreed by the Customer that ownership of the goods shall not pass until the Customer has paid all amount owing to the Contractor for the Work and goods.

5.3 Risk

The risk in the goods shall pass to the Customer upon delivery of the goods to the Customer or to a third party nominated by the Customer.

6. Payment

6.1 Time for payment

The Customer must, within the time specified in the Contractor’s Quote or invoice, pay the Contractor the total amount set out in the invoice. If no time for payment is stated then payment must be made within seven (7) days from the date of invoice.

6.2 Interest

The Contractor may charge interest at the rate of two percent (2%) above the commercial lending rate of the Contractor’s bank or financial institution calculated on a daily basis on amounts not paid within the time specified in the agreed Quote and invoice.

6.3 Damages

The Customer must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Customer’s failure to pay to the Contractor all sums outstanding as owed by the Customer to the Contractor including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.

6.4  Building and Construction Industry Payments Act 2004

At the Contractor’s sole discretion, if there are any disputes or claims for unpaid goods or services, then the provisions of the Building and Construction Industry Payments Act 2004 may apply.

7. Warranty

  1. The Contractor warrants that:
    1. the Works shall be carried out in a proper and workmanlike manner;
    2. all goods supplied will be suitable for the purpose for which they are used;
    3. the Works will be carried out in accordance with all relevant laws and legal requirements.
  2. The Customer hereby releases the Contractor from any action, suit, claim or demand arising out of or in connection with the provision or performance of the Works by the Contractor including, but not limited to:
    1. any negligent act/s and/or omission/s by the Contractor;
    2. any damage howsoever caused by the Contractor;
    3. any injury to any person, or loss or damage to property arising out of or in connection with the performance of the Work.

7.2 Warranty for goods

  1. Any warranty as to the goods on the part of the Customer shall be limited to the written warranty provided by the manufacturer to the Customer on or before installation of the goods.
  2. The Contractor reserves the right to make null and void the warranty should the goods be modified, altered, damaged or put to any undue stress other than in the way the goods were designed to perform.
  3. The Contractor shall not provide warranty on goods supplied by the Customer to be used in the work by the Contractor.
  4. In respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/goods or in properly assessing the Customer’s claim.

8. Defects

  1. The Customer shall inspect the Works upon completion and shall within fourteen (14) days of completion notify the Contractor in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote. The Customer shall afford the Contractor an opportunity to inspect the Works within a reasonable time following completion. If the Customer fails to comply with these provisions the Works shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
  2. For defective Works which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Works, or repairing the Works, within twenty eight (28) days of notification provided that the Customer has complied with the provisions of clause 8(a) above.

9. Owner’s Responsibility

It is the intention of the Contractor and agreed by the Customer that:

  1. The Site will comply with all Queensland occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
  2. The Contractor is not responsible for the removal of rubbish from or clean up of the Site.

10. Termination

  1. In the event that the Contractor is in serious breach of their obligations under this agreement, the Customer may give a written request to remedy the breach within fourteen (14) days. If the breach is not remedied within that time, the Customer may then terminate this contract by giving the Contractor written notice.
  2. Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment), or the Customer becomes unable to pay its debts as and when they fall due, the Contractor may suspend or terminate the supply of the Work to the Customer. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor exercised its rights under this clause.
  3. If the agreement is terminated under this clause, the Contractor is entitled to a reasonable price for the Work carried out under the agreement to the date the agreement is ended. However, the Contractor may not recover more than the Contractor would have been entitled to recover under the contract.

11. Liability

11.1 Non-excludable Rights

The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in this agreement and there are rights and remedies conferred on the Customer in relation to the provision of the goods and services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).

11.2 Disclaimer of Liability

The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Contractor for a breach of a Non-Excludable Right is limited, at the Contractor’s option, to the supplying of the goods and/or any services again or payment of the cost of having the goods and/or services supplied again.

11.3 Indirect Losses

Notwithstanding any other provision of this agreement, the Contractor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:

  1. any increased costs or expenses;
  2. any loss of profit, revenue, business, contracts or anticipated savings;
  3. any loss or expense resulting from a claim by a third party; or
  4. any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in delivering the goods or completing the Work.

11.4 No Set Off

The Customer must not withhold any payment due to the Contractor under this Contract, or set off or deduct all or any part of a payment due to the Contractor against any amount claimed by the Customer (including but not limited to for the rectification of defective works) for any reason.

12. Force Majeure

The Contractor will have no liability to the Customer in relation to any loss, damage or expense caused by the Contractor’s failure to deliver the goods or complete the Work as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary material or any other matter beyond the Contractor’s control.

13. Privacy

The Customer hereby authorises the Contractor to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Contractor, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.

14. Dispute Resolution

Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974, either party may refer any dispute under, or arising out of, this contract to the Institute of Arbitrators & Mediators Australia, for resolution under the Rules of the Construction Industry Dispute Resolution Scheme. Each case will first be referred to a Conciliator appointed by the Institute unless each party wishes to proceed directly to arbitration. If the conciliation is not satisfactorily concluded within six weeks or if the parties want to proceed directly to arbitration, the Institute will appoint an Arbitrator who will make a final and binding award.

15. Miscellaneous

15.1 No Waiver

A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

15.2 Severability

Any provision in this agreement which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

15.3 Relationship

The parties acknowledge that they are independent contractors and no other relationship, including partnership, joint venture, employment, franchise, master/servant or principal/agent is intended by this agreement. Neither party will have the right to bind or obligate the other.

15.4 Entire Agreement

This agreement, including all attachments, schedules and exhibits hereto, represents the entire agreement between the Customer and the Contractor with respect to the subject matter hereof and supersedes all prior representations, arrangements, understandings and agreements between the parties and represents the entire, complete and exclusive understanding and agreement between the parties relating to the subject matter of this agreement, and the parties acknowledge and agree that they have not relied on any written or oral representation, arrangement, understanding or agreement not expressly set out or referred to in this agreement.

15.5 Right of Variation

This agreement shall not be varied unless otherwise agreed by the parties in writing.

15.6 Intellectual Property

All illustrations, drawings, data or other documents developed by the Contractor for the performance of the Work remain the property of the Contractor and all intellectual property in those illustrations, drawings, data or other documents remain the property of the Contractor.

15.7 Governing Law and Jurisdiction

This agreement is governed by the law in force in Queensland and the parties submit to the non-exclusive jurisdiction of the courts of Queensland any courts in respect of any proceedings in connection with this agreement.