1.        INTERPRETATION

1.1.     Unless the contrary intention appears, in this Contract:

(a)    words in the singular include the plural and vice versa as required by the context;

(b)    the word “person” includes an individual, a firm, a body corporate, an unincorporated body, a partnership, a joint venture or an association; and

(c)    italic type words and phrases used in the General Conditions are defined in Clause 2.

2.        DEFINITIONS

Act – means the Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld);

Action – means any claim, notice, demand, proceeding or litigation brought in any Court or Tribunal;

Building Product – means any material or other thing associated with, or that could be associated with, a building;

Consumer Building Guide – means the Consumer Building Guide issued by the QBCC;

Contract – means these General Conditions, the Quotation and any other documents listed Clause 22.1;

Contract Date – means the date on which this Contract is signed by both parties;

Contract Works – means the whole of the works to be carried out by the Contractor under this Contract, whether Urgent Works, Emergency Works, or Works but excludes those items of work listed in Clause 26.1;

Contractor – means Aspire Contracting Pty Ltd and includes its permitted assignees and transferees;

Contract Price – means the amount stated on the Quotation as the ‘Contract Price’, being the total amount payable under the Contract for the Contract Works, as adjusted under this Contract;

Customer – means the person or persons listed as the ‘Customer’ on the Quotation and includes the Customer’s heirs, executors, administrators, permitted assignees and transferees and if more than one, each owner joint and severally;

Date for Commencement – means the date calculated by reference to Clause 6;

Date for Practical Completion – means the date by which the Contract Works are to reach Practical Completion pursuant to Clause 7;

Date of Commencement – means the first day which the Contractor actually commences work on the Site;

Date of Practical Completion – means that day that the Contract Works achieve Practical Completion;

Defects Document — means a document that:

(a)   lists the minor defects and minor omission in the Contract Works that the Contractor and the Customer agree exist;

(b)   states when the Contractor is to remedy the minor defects and minor omissions in (a);

(c)   lists the minor defects and minor omissions that the Customer claims exist and the Contractor does not agree exist; and

(d)   is signed by the Contractor;

Emergency Works – means works that are determined by the Contractor to be required to be carried out on an emergency basis by reason of their nature;

Excavation Works – means any work involved in relocation, repairing or removing an underground services, rock or obstructions, or digging in the ground beyond 1.5 metres from the ground surface level;

General Conditions – means these General Conditions to the Contract;

HWI Premium – means the premium payable to the QBCC in respect of the QBCC’s Home Warranty Insurance;

Latent Condition – means any physical condition on or around the Site the buildings or structures on the Site (including but not limited to surface, access, sub-surface conditions and concealed buildings elements) which differ materially from the physical conditions reasonably expected by the Contractor at the time the Contract was entered into;

Lending Body – means any person or entity which has agreed to provide finance to the Customer for payments of amounts to be paid by the Customer under this Contract;

Non-conforming Building Product – means a Building Product if:

(a)  the association of the product with a building for the use:

(i)                  is not, or will not be safe; or

(ii)                  does not, or will not, comply with the relevant regulatory provisions; or

(b)    the product does not perform or is not capable of performing, for the use to the standard it is represented to perform by or for a person in the chain of responsibility for the product; 

Other Works – means any work, other than Urgent Works and Emergency Works which is to be carried out by the Contractor under this Contract (a description of which is contained in the Quotation) but excludes those items of work listed in Clause 26.1;

Practical Completion – means that stage when the Contract Works are complete in accordance with the Contract and all relevant statutory requirements, apart from minor omissions or minor defects the rectification or completion of which does not prevent the Contract Works from being used for the intended purpose;

Progress Claim – means a written claim for payment under Clause 8;

QBCC – means the Queensland Building and Construction Commission;

Quotation – means the Contractor’s quote attached to this Contract;

Relevant Criteria – means having regard to generally accepted practices or standards applied in the building industry for the materials, or any specifications, instructions or recommendations of manufacturers or suppliers of the materials;

Search and Investigation Works – means any work involved in locating a plumbing problem and includes accessing roofs, under-spaces of buildings, locating gas leaks or location water leaks;

Site – means the ‘Job Address’ described on the Quotation;

Urgent Works – means works that the Customer has requested be undertaken on an urgent basis.

3.        CONTRACTOR’S OBLIGATIONS

Obligations and warranties

3.1.     The Contractor will carry out the Contract Works:

(a)    in an appropriate and skilful way and in a proper tradespersonlike manner;

(b)    with reasonable care and skill;

(c)    with reasonable diligence;

(d)    in accordance with the contract documents described at Clause 22.1; and

(e)    in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975.

3.2.     The Contractor shall, unless this Contract expressly provides otherwise, supply everything necessary for the performance of the Contract Works.

3.3.     The Contractor warrants that materials supplied by the Contractor for use in the Contract Works:

(a)    will be good and, having regard to the Relevant Criteria, suitable for the purpose for which they are used; and

(b)    unless otherwise stated in this Contract, will be new.

3.4.     The Contractor warrants that, if the Contract Works consist of:

(a)    the erection or construction of a detached dwelling to a stage suitable for occupation; or

(b)    the renovation, alteration, extension, improvement or repair of a home to a stage suitable for occupation,

the dwelling or home will be suitable for occupation when the Contract Works are finished.

Approvals

3.5.     Unless otherwise specified, the Customer shall obtain all permissions, consents or approvals required for the Contract Works (if any).

Excess materials

3.6.     Unless otherwise specified, all demolished and surplus materials are the property of the Contractor.

4.        CUSTOMER’S OBLIGATIONS

Site possession and access  

4.1.     The Customer must:

(a)    give the Contractor free and uninterrupted access to the Site as necessary to enable the performance of the Contract Works by the Date for Commencement;

(b)    not obstruct, interfere with, or hinder the carrying out of the Contract Works and must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of the Contract Works, including the unauthorised removal of any material supplied by the Contractor necessary for the completion of the Contract Works from the Site;

(c)    allow the Contractor to use any power or water services on the Site during the performance of the Contract Works; and

(d)    where possible, remove all personal effects or other property likely to impede the Contractor in its performance of the Contract Works from that part of the Site where the Contract Works are to be performed;

(e)    ensure that the Site is safe and suitable for the Contract Works to be undertaken; and

(f)     unless agreed otherwise, remove all rubbish from the Site upon the Contract Works reaching Practical Completion.

4.2.     If directed by the Contractor, the Customer is required to be present at the Site at all times while the Contract Works are being carried out.

4.3.     If:

(a)    the Customer fails to comply with its obligations in Clause 4.1 of the Contract; or

(b)    the Site becomes inaccessible due to any reason beyond the control of the Contractor,

the Customer is liable to the Contractor for any additional costs incurred by the Contractor in obtaining access to the Site or to overcome the issue including costs of any delay

Warranties

4.4.     The Customer warrants that it is authorised to occupy the Site and enter into this Contract.

4.5.     The Customer warrants that the existing substrate or material to which any part of the Contract Works is to be affixed is structurally sound and has been constructed in accordance with good building practices.

Customer-supplied documents and materials

4.6.     If the Customer supplies:

(a)    any documents to the Contractor, the Customer:

(i)     warrants that the documents or data are accurate and suitable for the purpose for which they are to be used;

(ii)     acknowledges that it is reasonable for the Contractor to rely on the documents or data;

(iii)    warrants that the documents or data does not infringe on a third party’s copyright;

(iv)   indemnifies the Contractor against any loss or damages by reason of a breach of copyright or warranty; and

(v)    must supply sufficient number of copies to enable the Contractor to undertake the Other Works;

(b)    any Building Products for incorporation into the Other Works, the Customer:

(i)     warrants that the Building Product supplied by the Customer is safe and suitable for its intended use;

(ii)     warrants that the Building Product is not a Non-conforming Building Product for its intended use; and

(iii)    will provide to the Contractor on request all required information for the Building Product relevant to the suitability and installation of the Building Product.

5.        CALL OUT FEE

5.1.     In requesting the Contractor’s service, the Customer has agreed to pay the call-out fee in consideration of the Contractor’s cost to dispatch a representative to the Site in relation to the Contract Works.

5.2.     The Customer must pay the call-out fee:

(a)    by 11.59pm on the day on which a representative of the Contractor is dispatched to the Site; or

(b)    where the Contractor’s representative is required to be dispatched to the Site outside the hours of 7.00am and 4.00pm Monday to Friday, or on a Saturday or Sunday, a public holiday in the local government area of the Site, or between 22 December and 14 January each year, prior to the dispatch of the Contractor’s representative.

5.3.     If:

(a)    the Customer pays the call-out fee within the time required by Clause 5.2;

(b)    the Site visit the subject of the call-out fee occurred not more than seven days prior to the Contract Date; and

(c)    the Site visit the subject of the call-out fee occurred between the hours of 7.00am and 4.00pm Monday to Friday and did not relate to Urgent Works or Emergency Works,

the Contract Price will be reduced by the sum of the call-out fee paid by the Customer up to the value of $35.00 plus GST.

6.        TIMING OF THE WORKS

Urgent Works and/or Emergency Works

6.1.     The Contractor will use its best endeavours to:

(a)    commence any Urgent Works and/or Emergency Works within twenty-four (24) hours of the Contract Date unless otherwise agreed in writing; and

(b)    complete any Urgent Works and/or Emergency Works within fourteen (14) days of the Contract Date.

Other Works

6.2.     The Contractor must commence the Other Works by the later of:

(a)    the date being five (5) days after the Contract Date; or

(b)    the date being five (5) days after:

(i)     the Customer has paid the deposit (if required);

(ii)     the Customer has complied with its obligations under Clause 4.1;

(iii)    if applicable, the Customer has provided evidence of its capacity to pay the Contract Price; and

(iv)   if applicable, the Contractor receives all approvals and consents (including finance approval) required to be obtained.

6.3.     If the necessary approvals are not obtained within thirty (30) days of the Contract Date:

(a)    through no fault of the parties, either party may bring this Contract to an ends by giving written notice to the other party; or

(b)    through the Customer’s fault, the Contractor may either terminate this Contract in accordance with Clause 13, or extend the time for the Customer to obtain the necessary approvals.

6.4.     If this Contract is brought to an end under Clause 6.3(b), the Contractor is entitled to a reasonable price for the work done up to and including the date the Contract ends, including its out-of-pocket expenses.

6.5.     The Contractor shall complete the Other Works within fourteen (14) days of the Contract Date.

6.6.     If the Contract Price is equal to or greater than $20,000, the Contractor must within ten (10) Business Days of starting work on Site, give notice in writing to the Customer of the Date of Commencement and the Date for Practical Completion.

7.        OBLIGATIONS UPON PRACTICAL COMPLETION

7.1.     On reaching Practical Completion, the Contractor must give to the Customer:

(a)    the final Progress Claim for the balance of the Contract Price and any adjustments under this Contract;

(b)    a certificate stating the date the Contract Works have reached Practical Completion; and

(c)    if the Customer claims there are minor defects and minor omissions in the Contract Works, a Defects Document.

7.2.     If the Customer does not agree that the Contract Works have achieved Practical Completion, the Customer must, within twenty-four (24) hours, give the Contractor a written notice stating: 

(a)    the remaining works that the Customer considers necessary for the Other Works to reach Practical Completion; and

(b)    the provisions of this Contract that relate to each item of remaining work.

7.3.     Upon receipt of the Customer’s notice under Clause 7.2, the Contractor must complete those items of remaining works that the Contractor agrees are reasonably necessary for the Contract Works to reach Practical Completion.

7.4.     On completion of works carried out by the Contractor under Clause 7.3, the Contractor must give the Customer a further final Progress Claim and a notice of Practical Completion.

7.5.     The Customer must pay the final Progress Claim before taking possession of the Contract Works and before being entitled to receive any reports or documents (including manuals, warranties (other than Statutory) or instruction) applicable to the Contract Works. 

7.6.     If the Customer takes possession of the Contract Works, or any part of the Contract Works, when not entitled to do so under this Contract, the Contract Works are deemed to have been completed by the Contractor free of all defects and omissions and the Customer is liable to the Contractor to pay the final Progress Claim without deduction and any loss or damage arising as a result.

8.        PAYMENT OF CONTRACT PRICE

8.1.     The Customer shall pay to the Contractor the Contract Price in accordance with this Contract.

8.2.     If the Contractor requires the Customer to pay a deposit, the Customer must pay the deposit to the Contractor by 5.00pm on the Contract Date.

8.3.     Unless otherwise agreed in writing, the Contractor is entitled to claim payment of the Contract Price at any time, provided that the amount claimed in each Progress Claim is proportionate to the value of the Contract Works carried out by the Contractor on the Site at the date of the Progress Claim.

8.4.     Progress Claims must:

(a)    contain:

(i)     details of the work carried out and the value of that work;

(ii)    details of any adjustment to the Contract Price under this Contract; and

(iii)    details of any other amount due and payable by the Customer to the Contractor under this Contract or otherwise; and

(b)    state the total amount that the Contractor claims for payment by the Customer.

General  

8.5.     The Customer must pay, or ensure that the Lending Body pays, to the Contractor, the total amount of a Progress Claim by 5.00pm on the date the Progress Claim is issued.

8.6.     Unless otherwise agreed in writing, payment in all cases is to be made by cash or by cleared funds deposited into the account of the Contractor. If any part of the Contract Price is paid by credit or debit card, then the Customer is also liable to pay a surcharge fee payable at the time of payment.

8.7.     The Customer acknowledges that the Customer has no right of set off under the Contract (or otherwise) or to deduct any amount from a payment due to the Contractor under the Contract, or to hold any retention for defect or omissions.

8.8.     Unless a prior agreement is reached with the Contractor, the Customer is not entitled to use or take possession of that part of the Site where the Contract Works are to be performed until the Contractor has been paid the Contract Price.

9.        DEFAULT ON PAYMENTS

9.1.     If the Customer fails to make any payment to the Contractor within five (5) days of the of receipt of a Progress Claim, the Contractor is entitled to:

(a)    interest on the outstanding amount at rate of 18% per annum, payable from the date that is five (5) days after the date the Progress Claim was issued until the date of payment;

(b)    if the Contract Works are incomplete, immediately suspend the Contract Works for a period ending five (5) days after payment is received by the Contractor by giving written notice to the Customer, such period of suspension being added to the Date for Practical Completion; and

(c)    be paid as a debt due by the Customer, its actual costs and expenses of recovering amounts owing including debt collection costs, solicitors’ costs, internal administrative fees and related fees and expenses.

9.2.     If the Customer has paid any part of the Contract Price which is dishonoured and the transaction is subsequently reversed, the Customer is liable for the amount of the reversed transaction in addition to any further costs incurred by the Contractor where the reversal is unlawful, fraudulent, or in contravention of the Customer’s obligations under this Contract.

9.3.     The Customer charges in the Contractor’s favour as security for the payment of all monies owing to the Contractor by the Customer:

(a)    where the Customer is not a resident owner, all of the Customer’s estate and interest in any land including the Site;

(b)    any other assets, other than the land constituting the Site, whether tangible or intangible in which the Customer now has any legal and/or beneficial interest and/or in which the Customer may later acquire any such interest.

9.4.     Where the Contractor has an interest in land pursuant to Clause 9.3(a), the Customer:

(a)    grants an equitable mortgage over the land to the Contractor, charging the land as security for the performance by the Customer of all of the Customer’s obligations under the Contract;

(b)    agrees to the Contractor lodging a caveat over the land to secure the Contractor’s interest as equitable mortgagee;

(c)    agrees to do all things and sign all documents necessary to enable the Contractor to lodge the caveat;

(d)    is liable for all stamp duty, fees, costs, charges and expenses incurred by the Contractor or arising by the operation of this Clause and on any caveat lodged by the Contractor on an indemnity basis; and

(e)    hereby irrevocably appoints the Contractor as the Customer’s attorney for the purposes of doing all things necessary to enable the Contractor to register a security interest of any kind over any such property.

10.      VARIATIONS AND LATENT CONDITIONS

Variations  

10.1.   Either party may give to the other a written notice requesting a variation of the Contract Works. The variation may either add or omit work from the Contract Works.

10.2.   The Contractor may, at its absolute discretion, agree to carry out any variation requested by the Customer.

10.3.   Before commencing any work comprising a variation, the Contractor must ensure that the details of the variation are put in writing in a variation document, signed by both parties.

10.4.   The variation document must:

(a)    be readily legible;

(b)    describe the variation;

(c)    state the date of the request for the variation;

(d)    state the Contractor’s estimate of any period of delay to the progress of the Contract Works as a result of the variation;

(e)    state any adjustment to the Contract Price, or the method for calculating the adjustment; and

(f)     state when any adjustment to the Contract Price is to be claimed or accounted for.

10.5.   The Contractor must give the Customer a copy of the signed variation document within two (2) days of the earlier of when the variation is agreed or before any work the subject of the variation is started.

10.6.   Where a variation results in an increase to the Contract Price, the Customer must pay the Contractor the amount of the increase in accordance with the time stated in the variation document.

10.7.   Notwithstanding its obligations under this Clause, the Contractor is not required to give the Customer a variation document prior to commencing work if the work the subject of the variation is urgent and it is not practicable to do so.

Latent Conditions

10.8.   Within two (2) days of becoming aware of a Latent Condition, the Contractor must give written notice to the Customer describing the Latent Condition and providing an estimate of the time, cost and work required to overcome the Latent Condition.

10.9.   Within one (1) day of receipt of the Contractor’s notice under Clause 10.8, the Customer must give written notice to the Contractor instructing the Contractor to proceed with the work required to overcome the Latent Condition.

10.10. Except in the case referred to in Clause 10.7, the Contractor must not undertake any action to overcome the Latent Condition until the Customer’s notice under Clause 10.9 is received.

10.11. The Customer’s notice under Clause 10.9 will be a deemed variation to the Contract Works and Clause 10.6 applies.

11.      EXTENSION OF TIME CLAIMS AND DELAY COSTS

Extension of time claims

11.1.   If the progress of the Contract Works is delayed by any of the following causes:

(a)    weather or conditions resulting from weather;

(b)    any order of a Court, Tribunal or other authority;

(c)    any act or omission of the Customer, including the Customer’s failure to sign a variation document, give its consent to a variation due to a legal requirement or Latent Condition, or a delay by the Customer in giving a direction under Clause 11.3;

(d)    any civil commotion or industrial dispute affecting the Contract Works or the supply of materials for the Contract Works;

(e)    any variation to the Contract Works;

(f)     any suspension of the Contract Works by the Contractor under this Contract;

(g)    the unavailability of any labour or materials necessary to carry out the Contract Works;

(h)    the industry shutdown being a 3-week period commencing on or about 22 December each year, if construction during the Christmas period was not reasonably foreseeable at the Contract Date; or

(i)     any other matter, cause or thing beyond the control of the Contractor,

the Contractor is entitled to make a claim for an extension to the Date for Practical Completion equivalent to the period of the delay.

11.2.   To claim an extension of time to the Date for Practical Completion, the Contractor must within five (5) days of when the Contractor became aware of the cause and extent of the delay, give to the Customer a written notice claiming the extension of time.

11.3.   If the Customer does not, within a further two (2) days, notify the Contractor in writing that the extension of time claim is approved or rejected (including reasons for such rejection), the parties consent to the Contractor’s extension of time claim becoming a notice of dispute under Clause 18.1.

Delay costs

11.4.   The Customer shall reimburse the Contractor’s reasonable costs incurred during the period of delay, irrespective of whether the Customer has approved the Contractor’s claim for an extension of time.

12.      SUSPENSION

12.1.   The Contractor may, by written notice to the Customer, give notice of its intention to suspend the Contract Works for the following reasons:

(a)    where the Customer fails to make payment of a Progress Claim that is not the subject of a dispute under Clause 18 within five (5) days of the of receipt of the Progress Claim;

(b)    where the Customer accesses the Site or takes possession or the Contract Works in breach of Clause 4;

(c)    where any dispute or difference between the parties has been referred under Clause 18 and it is not reasonably possible for the Contractor to proceed with the Contract Works whilst the dispute is unresolved; or

(d)    where the Customer is otherwise in breach of this Contract.

12.2.   The written notice in Clause 12.1 must set out the details of the Customer’s failure and the Contractor’s intention to suspend the Contract Works if the failure is not remedied within two (2) days after the notice is given.

12.3.   If the Customer does not remedy the failure specified in the notice, the Contractor may, upon giving a further written notice to the Customer, suspend the Contract Works.

12.4.   The Contractor must recommence the Contract Works within two (2) days after the Customer remedies the failure and gives the Contractor written notice requiring the Contractor to recommence the Contract Works.

12.5.   The Customer shall reimburse the Contractor’s reasonable costs incurred during a suspension of the Contract Works.

13.      TERMINATION

13.1.   If either party:

(a)    is in substantial breach of the Contract; or

(b)    becomes insolvent or takes advantage of the laws of bankruptcy,

the party not in default may give written notice to the defaulting party:

(c)    describing the breach or breaches of the Contract by the party in default; and

(d)    stating the party’s intention to terminate the Contract unless the defaulting party remedies the breach or breaches with in five (5) days after receiving the notice referred to in this Clause.

13.2.   If the defaulting party fails to remedy the breach or breaches stated in any notice served pursuant to Clause 13.1, the party not in default, may immediately, without prejudice to any other rights or remedies, terminate this Contract by a further written notice to the defaulting party.

13.3.   If:

(a)    the Contractor terminates this Contract pursuant to this Clause, the Contractor is entitled to recover from the Customer all losses, costs, expenses and damages in connection with the Customer’s breach, and the termination, as if the Customer had wrongfully repudiated the Contract. The Contractor may remove from the Site, and retain, all materials, goods, plant and equipment previously provided by the Contractor;

(b)    the Customer terminates the Contract pursuant to this Clause, the Contractor is entitled to retain a reasonable price for the work done up to and including the date the Contract ends, including its out-of-pocket expenses.

13.4.   If the Contractor or the Customer, as applicable:

(a)    enters into certain arrangements for the purpose of avoiding becoming bankrupt or being wound up in insolvency; or

(b)    appoints an administrator,

then the right to terminate this Contract pursuant to Clause 13 may be limited by the Corporations Act 2001 (Cth).

14.      DEFECTS

14.1.   The Contractor shall, at its own cost, make good all defects or omissions that may appear in the Contract Works within six (6) months after the Date of Practical Completion.

14.2.   If any such defect or omission appears with six (6) months after the Date of Practical Completion, the Customer must within seven (7) days of becoming aware of the defect give the Contractor written notice to make good the defect or omission and shall give the Contractor access to the Site for that purpose.

14.3.   The Contractor shall make good the defect or omission within thirty (30) days of receiving the Customer’s notice under Clause 14.2.

14.4.   The Contractor is under no obligation to rectify any defects or omissions in the Contract Works which:

(a)    do not appear within six (6) months after the Date of Practical Completion; and/or

(b)    are not notified to the Contractor in writing within seven (7) days of the Customer becoming aware of the defect or omission; and/or

(c)    have arisen as a result of:

(i)     any act or omission of the Customer, including the Customer’s failure to properly maintain the Site and/or the Contract Works; or

(ii)     the Contract Works including any accessories, equipment, other items supplied or installed by the Contractor under this Contract having been modified by persons other than the Contractor.

14.5.   The Contractor reserves the right to claim a call-out fee and the cost of any work required to rectify a defect or omission notified by the Customer under Clause 14.2 where it is determined that such defect or omission is not a defect or omission in the Contract Works performed by the Contractor.

15.      DAMAGE TO THE SITE 

15.1.   The Contractor is not liable to the Customer for any damage to the Site including but not limited to damage to the Customer’s property, underground services, existing substrate or framing, existing fixtures, tiles or any private or public property, caused by reasonable acts of the Contractor or any third party, arising from access to the Site to perform the Contract Works and/or performance of the Contract Works.

15.2.   The Contractor accepts no liability for damage to finished surfaces, including but not limited to ceiling tiles and panels, face brickwork and rendered masonry surfaces, which are an unavoidable consequence of performing the Contract Works.

16.      TITLE, RISK AND INSURANCE

Title and risk  

16.1.   Title to any materials supplied by the Contractor for the Contract Works shall not pass to the Customer unless and until the Customer has paid all amount owing for the relevant material. 

16.2.   Notwithstanding Clause 16.1, all risk in any materials supplied by the Contractor for the Contract Works shall pass to the Customer upon delivery of those materials to the Site. 

16.3.   Until title passes to the Customer:

(a)    the Customer will hold the materials solely as bailee for the Contractor and the Customer will store the goods separately from its own goods and materials and those of other persons and in such a manner as will clearly identify the materials as the property of the Contractor;

(b)    the Customer agrees not to cut, alter, affix or install any materials until title has passed to the Customer; and

(c)    the Contractor retains its rights as an unpaid Contractor in respect of the materials.

16.4.   The Contractor is not liable for any liability, loss or claim relating to any property placed on the Site without the Contractor’s prior written consent.

Insurance

16.5.   The Contractor is required to have in effect during the currency of the Contract Works:

(a)    all insurances required to comply with the Workers’ Compensation and Rehabilitation Act 2003;

(b)    a Public Liability Insurance Policy covering the liabilities of the Contractor to third parties in respect of personal injury, death, loss or damage to property, arising out of, or in connection with, the Contract Works; and

(c)    where required by the Queensland Building and Construction Commission Act 1991 (Qld), a policy under the QBCC Queensland Home Warranty Scheme.

17.      WORKPLACE HEALTH AND SAFETY

17.1.   The Contractor must:

(a)    comply with all applicable workplace health and safety laws, including industry codes of practices and advisory standards;

(b)    comply with all environmental protection laws; and

(c)    ensure that adequate and appropriate workplace health and safety instructions and supervision is provided to persons carrying out the Contract Works.

18.      RESOLUTION OF DISPUTES

18.1.   If either party considers that a dispute has arisen in relation to anything in connection with this Contract, during the progress of the Contract Works or after completion of any stage of the Contract Works, that party must immediately upon becoming aware of such circumstances, give to the other party a written notice setting out the details of the dispute.

18.2.   If the dispute cannot be resolved informally between the parties within fifteen (15) days of a notice being given under Clause 18.1, the parties must then refer the dispute to the EDR Process (facilitated by the QBCC), whose role will be to assist in the resolution of the dispute through negotiation and mediation (which may include independent expert appraisal of the Contract Works).

18.3.   If the dispute cannot be resolved through negotiation or mediation, the Customer or the Contractor (as the case maybe) must then give written notice to the other party advising that they intend to resolve the matter through other legal means as appropriate.

19.      FINANCE AND EVIDENCE OF CAPACITY TO PAY

19.1.   The Customer must give to the Contractor evidence of the Customer’s capacity to pay the Contract Price:

(a)    as soon as practicable after the Contract Date; and

(b)    within five (5) days of a reasonable request by the Contractor for evidence of the Customer’s capacity to pay the balance of the Contract Price.

19.2.   If the Customer has obtained, or intends to obtain, finance from a Lending Body in respect of the Contract Price, then:

(a)    the Customer must inform the Contractor that this Contract is subject to finance;

(b)    the Customer must use all reasonable endeavours to obtain loan approval from the Lending Body;

(c)    the Customer must give a direction to the Lending Body authorising the Lending Body to pay directly to the Contractor all money advanced to the Customer for payment of all or part of the Contract Price as adjusted under this Contract; and

(d)    if the Lending Body refuses to approve the Customer’s loan request and the Customer is unable to otherwise secure finance for the Contract Price, the Contract will come to an end and the Customer will be liable to the Contractor for all Contract Works carried out by the Contractor up to the date that the Customer notifies the Contractor in writing that it has been unable to obtain finance.

20.      INDEMNITIES

20.1.   The Customer indemnities, and will keep indemnified, the Contractor against any loss, damage or Action arising out of the Contract Works, except to the extent that such loss damage or Action is caused or contributed to by the Contractor.

21.      STATEMENT OF STATUTORY WARRANTIES

21.1.   This Contract is subject to statutory warranties implied in Part 2 and Part 3 of the Act.

22.      CONTRACT DOCUMENTS AND DISCREPENCY, ERROR AND AMBIGUITY

22.1.   The following documents form part of this Contract and must be attached:

(a)    the General Conditions;

(b)    the Quotation; and

(c)    the special conditions (if any).

22.2.   In the event of any difference or inconsistency between the documents constituting this Contract, the Contractor must discuss the matter with the Customer and attempt to seek agreement on the correct interpretation of the documents.

22.3.   Subject to Clause 18, any discrepancy, error or ambiguity in or between any documents comprising this Contract is to be resolved by adopting the order of precedence as follows:

(a)    any special conditions;

(b)    these General Conditions;

(c)    the Quotation;

(d)    any other documents recorded at Clause 22.1. 

23.      NOTICES / ELECTRONIC COMMUNICATION

23.1.   Any notice under the Contract may be given by:

(a)    hand delivery;

(b)    prepaid post;

(c)    SMS; or

(d)    email,

to the phone number, address or email address notified by a party at the time of booking, as updated from time to time in writing.

23.2.   A notice given by SMS or email shall be deemed received if the recipient’s phone or email server received the SMS or email irrespective of whether the recipient has opened the SMS or email.

23.3.   The Customer and the Contractor consent to the use of the electronic method of delivery on the terms described in this Clause 23 and specifically agree to receive information and documentation relating to the Contract via electronic communication to the phone number and/or email address notified a party at the time of booking, as updated from time to time in writing. The Customer and the Contractor agree that where a document is required to be signed and/or initialled by a party, the requirement will be taken to have been met if an image of the signature and/or initials appears in the relevant document received by electronic communication from the party’s email address, or the party provides express authorisation via SMS. 

24.      LIMITATION OF LIABILITY

24.1.   The Customer agrees:

(a)    that the Contractor will not be liable to the Customer, and is released and discharged by the Customer from all liability to the Customer under this Contract, or any statute or other law or legal requirement, which permits the parties to exclude, restrict, or modify liability, on the expiration of the period of three (3) years after the Date of Practical Completion unless:

(i)     the Customer has started proceedings against the Contractor in respect of any liability, or alleged liability, before the expiration of three (3) years after the Date of Practical Completion;

(ii)     any such liability cannot be excluded, restricted or modified under a relevant statute or other law or legal requirement; or

(iii)    the Contractor fraudulently or deliberately concealed facts, matters or circumstances within the Contractor’s knowledge from the Customer that gave rise to any such liability by the Contractor to the Customer and as a result of the concealment, the facts, matters or circumstances that gave rise to such liability are not within the Customer’s knowledge until after the expiration of the period of three (3) years after the Date of Practical Completion;

(b)    that on the expiration of the period of three (3) years after the Date of Practical Completion, the Customer will not be entitled to commence any Action against the Contractor in respect of any liability for which the Contractor is deemed to be released and discharged by the Customer under Clause 24.1(a).

24.2.   To avoid doubt, Clause 24.1 does not apply to:

(a)    any statutory warranty that is incorporated into, and forms part of, this Contract in accordance with the Act; and

(b)    any guarantee of other statutory requirement (including any prohibition), provided for under Australian Consumer Law. 

24.3.   To the maximum extent permitted by law:

(a)    in respect of a failure of material or equipment supplied by the Contractor, the Contractor’s liability to repair or replace the material or equipment is limited to the same extent that the manufacturer of the equipment is required to warrant the equipment;

(b)    the Contractor does not accept liability for any minor defects or imperfections in the Contract Works (such as slight colour variations in metal); and

(c)    the Contractor’s liability to the Customer is limited to, at the Contractor’s election, the re-performance of the Contract Works or the Contract Price.

Warranties in relation to blockages  

24.4.   To the maximum extent permitted by law, the Contractor provides no warranty for, and is not liable for, drain blockages.

24.5.   The Customer accepts and acknowledges that:

(a)    blocked drains generally indicate the presence of root growth or blockages from other external sources whereby the removal of an obstruction will not necessarily rectify the underlying issue;

(b)    if the Contract Works involve clearing a blockage from a pipe and that pipe becomes blocked after the initial clearing, any further work undertaken to unblock that pipe during the currency of this Contract will be treated as a variation under Clause 10 (as the case may be);

(c)    depending on the cause of the blockage and/or the number of areas that are contributing to the blockage, the Contractor may not be able to remove the blockage and replacement of pipes may be required at additional the Customer’s additional expense; and

(d)    if the Contract Works involve the clearing of any drains or pipes and equipment used in the Contract Works becomes caught, lodged or broken in a pipe or drain, the cost associated with the removal of that equipment shall be borne by the Customer. 

Customer-supplied materials 

24.6.   To the extent permitted by law, the Contractor provides no warranty for, and is not liable for, materials supplied by the Customer for use in the Contract Works.

25.      COOLING OFF PERIOD

25.1.   This Clause 25 applies only where the Contract Price is exceeds $3,300 (including GST).

25.2.   Subject to Part 5 of the Act:

(a)    the Customer may withdraw from this Contract:

(i)     within five (5) business days after receiving a signed copy of this Contract; and

(ii)     where the Contract Price is equal to or greater than $20,000, within five (5) business days after receiving the Consumer Building Guide;

(b)    if five (5) business days have elapsed from the day this Contract was entered into and the Customer has not received the signed Contract and, if required, the Consumer Building Guide, the Customer may withdraw from this Contract.

25.3.   In order to withdraw from this Contract, the Customer must give a written notice to the Contractor, stating that the Customer withdraws from this Contract under section 37 of the Act.

25.4.   The Customer may not withdraw from this Contract under section 37 of the Act if:

(a)    the Customer and the Contractor have previously entered into a contract in substantially the same terms and services for the same Site; or

(b)    the Customer has received formal independent legal advice about this Contract before entering into this Contract; or

(c)    the Customer informs the Contractor that the Customer has received formal legal advice about this Contract before entering into this Contract.

25.5.   If the Customer withdraws from this Contract under section 37 of the Act, the Customer must pay to the Contractor the amount of $100 plus an amount equal to any out-of-pocket expenses reasonably incurred by the Contractor before the Customer withdrew from this Contract.

25.6.   The Customer acknowledges that this Contract is a repair contract for the purposes of section 39 of the Act and that the customer may elect to waive their rights of withdrawal under section 37 of the Act by signing the Notice of Waiver of Cooling-Off Period provided with this Contract.

26.      EXCLUDED ITEMS

26.1.   Unless otherwise agreed in writing, the Customer and the Contractor agree that the following items do not form part of this Contract and are not included in the Contract Price:

(a)    Search and Investigation Works;

(b)    Excavation Works;

(c)    works relating to water hammer;

(d)    warranty or liability in respect of any nature on any work not actually performed by the Contractor;

(e)    warranty or liability in respect of any work in whole or in part that is carried out by the Customer or others (prior to, during or after the Contract);

(f)     survey of the Site;

(g)    the cost of overcoming any Latent Condition;

(h)    connection of services to the Site; or

(i)     warranty or liability in respect of any intermittent or lingering smells.

26.2.   In the event that the parties agree that any Excavation Works form part of the Contract Works:

(a)    the Contractor will take all reasonable care to avoid damages to any underground services; and

(b)    the Customer agrees to indemnify the Contractor in respect of any damage or Action in relation to the Excavation Work in accordance with Clause 20.

27.      GENERAL

Contract Price

27.1.   The Contract Price is only valid for seven (7) days from the ‘Quote Date’ recorded on the Quotation. The Contractor reserves the right to recalculate the Contract Price if the Customer does not provide return a signed copy of the Contract to the Contractor within seven (7) days from the ‘Quote Date’ recorded on the Quotation.

Entire agreement  

27.2.   This Contract constitutes the entire agreement between the parties regarding its subject matter and supersedes all previous agreements, understandings and negotiations on the subject matter.

Waiver and severance

27.3.   Except as provided at law or in equity or elsewhere in this Contract, none of the terms of this Contract shall be varied, waived, discharged or released, except with the prior consent in writing of the other party in each instance.

27.4.   If any provision of this Contract is void, voidable, unenforceable or illegal, or has the effect of making another provision of this Contract void, unenforceable or illegal, it is to be read down so as to be valid and enforceable or, if it cannot be so read down, the provision (or where possible the offending words) is to be severed from this Contract without affecting the validity, legality or enforceability of the remaining provisions (or parts of those provisions) which continue to have effect.

Assignment and subcontracting

27.5.   Neither party may assign this Contract, any payment or any right, benefit or interest under this Contract without the prior written consent of the other party.

27.6.   The Contractor may subcontract any part of the Contract Works but such subcontracting does not relieve the Contractor from the Contractor’s obligations under this Contract.

Governing law and jurisdiction

27.7.   This Contract is governed by, and is to be construed in accordance with, the law in force in the state where the Contract Works are to be carried out.

27.8.   The parties submit to the exclusive jurisdiction of the courts, including courts of appeal, of the state where the Contract Works are to be carried out. Each party waives any right is has to object to an Action being brought in those courts without limitation.

Force majeure 

27.9.   A party whose performance of its obligations under this Contract is or will be affected by an act of God, war, natural disaster, terrorism, or any other event beyond the reasonable control of the parties may, by written notice to the other party:

(a)    suspend the Contract Works to the extent that the act of God, war, natural disaster, terrorism, or any other event beyond the reasonable control of the parties prevents or delays performance; or

(b)    terminate this Contract.

28.    PRICE BEAT GUARANTEE

28.1. The quote must be in writing and assessed by a licensed plumber onsite who holds a valid ACN and is registered for GST.

28.2. The quote must not be obtained via trade service registries such as Airtasker, hipages, Service Seeking etc.

28.3. Quote must have been tendered within the past 5 business days.

28.4. The quote must be ‘like for like’; same materials, warranty and location if it is a relocation of a service.

28.5. The quote must not include any discounts, promotions, cashbacks or redemptions etc

28.6. Not valid in conjunction with any other offers

28.7. Not applicable for emergency, after-hours, public holidays or weekend work

28.8. The quote must be presented prior to the quote being generated

28.9. Price beat guarantee must be within reason and is up to company discretion.

29.    COUPONS

29.1. Only redeemable between the standard business hours of 7am to 4pm, Monday to Friday. Must be mentioned over the phone at the time of booking. Excludes emergencies, public holidays, afterhours and call out fees. Not valid with any other offers or promotions. Not exchangeable for cash. Limited to one use per job.

30. ‘Same Day Service or It’s Free’ Offer

30.1. Only applicable to calls made before midday.

30.2. Bookings made after 12pm Monday to Friday and on Saturday, Sunday and public holidays are excluded from this offer.

30.3. If the Contractor is unable to attend on the same day for a booking made before midday, the standard call out fee will be waived and is free, however all other service charges, fees and expenses will apply to perform the Services and/or provide the Goods.