HC Plumbing Terms & Conditions
1 PRICES
All prices are quoted on the basis of cost of labour, fixtures and materials at the date of the quotation and are valid for a period of 31 days.
2 ACCEPTANCE OF QUOTATION
The client has requested the contractor to quote for works and the contractor has provided the quotation to the client, which the client must accept or reject within thirty-one (31) days of its receipt. The contractor may, at its absolute discretion and without incurring any liability to the client whatsoever, revise or withdraw the quotation at any time before communication by the client to the contractor of its acceptance of the quotation in writing. The client may accept a quotation and authorise the works to commence subject to the terms herein by sending to the contractor a letter or email acknowledging and agreeing to the terms of the quotation or clicking “accept quote” on email.
The parties will be deemed to have formed a contract upon the communication by the client to the contractor of its acceptance of the quotation in writing. The parties agree that the contractor is to complete the works in accordance with the terms of this contract.
3 VARIATIONS AND ALTERATIONS
All extras or alterations not included in the quotation shall be requested in writing and the cost of same agreed by the parties in writing by the parties executing a notification & consent variation before the contractor is required to commence work on such extras or alterations.
4 REMOVAL OF MATERIALS
Any materials removed from the clients’ premises in connection with the works authorised overleaf and not re-used on the job shall be the property of the contractor unless otherwise agreed.
5 DEFECTS IN EXISTING INSTALLATION
Should the contractor in the course of any work authorised, discover any defect in any part of the site, premises or the existing installation therein or connection there to which makes it impracticable or inexpedient for the contractor to continue work under this contract without repairing or replacing any part of the said site, premises, installation or connection (and the contractor shall be the sole judge thereof) the contractor shall be entitled to suspend work on the job and shall immediately notify the client thereof and submit the price of such additional work in accordance with clause 3 herein and if the client shall fail to sign the notification & consent on variation for the contractor to carry out the same this contract shall be deemed at an end and the contractor shall be entitled to payment for all work done and materials supplied to date of the suspension of the work, notwithstanding anything to the contrary contained in this contract.
6 DEFECTIVE FOUNDATIONS, ETC.
The contractor shall not be liable for any loss or damage resulting from insufficient or defective foundations, walls or other structure not erected by the contractor or the site not being prepared to enable to the contractor to effect the works. The client indemnifies the contractor for any damages for loss the contractor suffers resulting for such insufficient or defective foundations, walls or other structure not erected by the contractor or the site not being prepared to enable to contractor to effect the works. The cost of shoring for work over 1.5m in depth and unstable areas and dewatering the site to be able to effect the works is not included in the price. The extra cost of such work shall be incurred by the client to be addressed in accordance with clause 3 herein.
7 TREE ROOTS AND MADE UP GROUND
This quotation does not cover concreting or other special treatment of drains on account of proximity of trees, made up ground or other causes. If concreting or the use of cast iron is ordered by any competent statutory authority, statutory authority inspector or person authorised by such an authority an additional charge will be incurred by the client. In the case of tree roots, the removal of the offending trees shall be at the discretion of the client. The extra cost of such removal shall be incurred by the client to be addressed in accordance with clause 3 herein.
8 ROCK AND REEF
This quotation does not cover the removal by mechanical means or blasting of rock, reef or abnormal ground which may be encountered in the course of excavation. Should this eventuate an additional charge is payable by the client for it is not included in the price. This is to be calculated at hourly rate of the machine selected for task.
The cost of removal of surplus rock from the site is not included in this price and shall be an extra cost to the client to be addressed in accordance with clause 3 herein.
9 EXISTING SERVICES
For the purpose of this quotation, it is assumed the existing services are in good order. The reinstatement of said services cut or damaged by the contactor during the course of these works is not included in the price but if there is any renewal for reasons not reasonably expected or caused by the contractor (in its sole discretion) an extra cost shall be incurred by the client to be addressed in accordance with clause 3 herein.
Any damage to existing utility services not located by the client and not able to be reasonably located by the contractor will be repaired at the client’s cost and is not included in this quotation. Such damage shall be considered as an extra cost payable by the client to be addressed in accordance with clause 3 herein.
10 EXTRA WORK ARISING OUT OF EXISTING INSTALLATIONS For the purpose of this quotation, it is assumed the existing installations comply with statutory regulations. Any work additional to the works to be performed which is ordered by any competent statutory authority, local authority inspector or person authorised by such authorities will be charged as an extra. Such additional work shall be considered as an extra cost payable by the client to be addressed in accordance with clause 3 herein.
11 REMOVAL OF SPOIL
Surplus excavated material will be stacked neatly in heaps in positions convenient for topping up trenches after subsidence. If removal from the Site is demanded an additional charge for this service will be made. Such removal shall be considered as an extra cost payable by the client to be addressed in accordance with clause 3 herein.
12 CLIENT’S MATERIALS
If any fixtures, fittings, or materials are supplied by the client all care will be taken but fixtures, fittings and materials so supplied will be stored, handled and installed at the client’s risk.
13 SUSPENSION IN DEFAULT OF PAYMENT
Without prejudice to any other rights of the contractor, where the client fails to make any payments due hereunder on the due dates the contractor shall be entitled to suspend the works until payment is made and if default continues for a period of seven days thereafter the contractor shall be entitled to determine the contract and in addition to any other rights which may be conferred upon him at law or at equity shall be paid for work and labour done and materials supplied to the date of suspension.
14 COMPLETION AND DELAYS
The contractor agrees to complete all works authorised in a good and workmanlike manner as soon as is reasonably practicable and whether or not a definite date for completion has been quoted shall not be responsible for any delay in completion or damage occasioned directly or indirectly by weather conditions, labour disputes, accidents, fire, act of God, civil riots, shortages of material or difficulty of securing labour or any cause beyond the reasonable and practicable control of the contractor.
15 TITLE TO MATERIALS AND EQUIPMENT
15.1 In connection with the materials while they remain the property of the contractor, the client agrees with the contractor, the client agrees with the contractor that;
15.1.1 The client has no right or claim to any interest in the materials to secure any liquidated or unliquidated debt or obligation the contractor owes to the client;
15.1.2 The client cannot claim any lien over the materials;
15.1.3 The client will not create any absolute or defeasible interest in the materials in relation to any third party except as may be authorised by the contractor;
15.1.4 Where the client is in actual or constructive possession of the materials:
15.1.5 The client will not deliver them or any document of title to the materials to any person except as directed by the contractor; and
15.1.6 It is in possession of the materials as a bailee of those materials and owes the contractor the duties and liabilities of a bailee.
15.2 In connection with the materials, the contractor states to the client that;
15.2.1 The contractor has the right to supply the materials to the client;
15.2.2 The activities of the contractor in supplying the materials do not infringe the rights of the owner of the materials (where the contractor is not the owner of the materials);
15.2.3 If the materials are not owned by the contractor, that the contractor is authorised to supply the materials to the client.
15.3 The contractor and the client agree that:
15.3.1 The property of the contractor in the materials remains with the contractor until the contractor has been paid in full under this contract;
15.3.2 The client is a bailee of the materials until such time as property in them passes to the client and that this bailment continues in relation to all of the materials until the price has been paid in full. Whilst acting as bailee, the client shall not, except with the prior consent of the contractor and subject to the provisions herein, return materials and equipment to the contractor. If after the due delivery date materials and equipment remains in, or is returned to the possession of the contractor the client shall pay such an amount for storage and any other handling charges as the contractor may determine;
15.3.3 Pending payment in full of the Price under this contract, the client;
15.3.3.1 Must not supply any of the materials to any person;
15.3.3.2 Must not allow any person to have or acquire any security interest in the materials;
15.3.3.3 Must ensure the materials for their full insurable or replacement value (whichever is the higher) with any insurer licensed or authorised to conduct the business of insurance in the place where the client carries on the business, resides or a location in which the materials are being stored by or for the client; and
15.3.3.4 Must not remove, deface or obliterate any identifying plate, mark or number on any of the materials.
15.3.3.5 Shall not use or incorporate the contractor’s materials and equipment in any construction or sell, lease or otherwise dispose of the same.
15.4 Despite clause 15.3, if the client supplies any of the materials to any person before all moneys payable by the client have been paid to the contractor (and have not been claimed or clawed-back by any person standing in the place of or representing the client), the client agrees that:
15.4.1 It holds the proceeds of re-supply of the materials on trust for and as agent for the contractor immediately when they are receivable or received;
15.4.2 It must either pay the amount of the proceeds of re-supply to the seller immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the contractor;
15.4.3 Any accessory or item which accedes to any of the materials by an act of the client or of any person at the direction or required of the client becomes and remains the property of the contractor until the contractor is paid in accordance with clause 15.3.1 when the property in the materials (including the accessory) passes to the client; and
15.4.4 If the client fails to pay the price within the period as stated in this contract, the contractor may recover possession of the materials at any site owned, possessed or controlled by the client and the client agrees that the contractor has an irrevocable license to do so.
15.4.5 For the purpose of giving full effect to this contract and the posers hereby conferred, whilst any monies now or from time to time are owing by the client to the contractor, the client appoints the contractor and any of its authorised officers, jointly and each of them severally, the true and lawful attorney and attorneys of the client to do anything in the name of the client or the contractor which the client should do or should have done hereunder and to do all such acts, matters and things as such attorney or attorneys may deem expedient for carrying out, or in connection with the exercise of all or any of the rights or powers herein contained or implied to give effect to this contract or for the enforcement thereof and this power of attorney is deemed irrevocable and given by way of security.
15.4.6 The client does hereby agree to charge all of their respective personal property wheresoever situated with the amount of monies owed by the client to the contractor hereunder. As further and better security for the repayment of all money from time to time owing by the client to the contractor the client mortgages and charges to and in favour of the contractor all right, title, estate and interest which the client now holds or may hold hereafter acquire and hold in any personal property in Australia. The client shall, at the request of the contractor sign, execute and deliver in favour of the contractor a bill or sale, mortgage or charge over the client’s personal property in registrable form as the contactor may require, such document or documents incorporating the usual terms, conditions and covenants to protect the interest of the contractor hereunder, within five (5) days of the contractor requesting the same of the client.
15.4.7 If this contract is not a regulated contract then the client and the contractor covenant and agree that the contractor has a caveatable interest in the land of the client for the purpose of the Land Title Act 1994.
16 PAYMENT
16.1 The client shall pay to the contractor the deposit stated in the quotation upon the signing or acceptance of the quotation.
16.2 The client will pay the contractor the price by way of progress payments.
16.3 The contractor shall submit to the client written requests for progress payments on completion of stages, which shall be in the form of a proper and valid tax invoice, in accordance with the GST legislation, and consist of:
16.3.1 Details of the works which have been completed and the amounts payable in relation to such Works; and ;
16.3.2 Details and amounts of any other amounts then payable to the contractor under the contract.
16.4 The client must pay the contractor progress payments in accordance with the written claims supplied by the contractor in accordance with clause 16.3 within fourteen (14) days of the submission of the progress claim in the form of a proper and valid Tax Invoice by the contractor.
16.5 Should the client neglect or refuse to pay the amount of any progress payment by the due date, then the contractor may, at its option, with or without notice to the client, suspend performance of the works until such payment has been received in full.
16.6 The client acknowledges that the following applies if the BCIPA applies to this contract:
16.6.1 That a progress claim of the contract can be endorsed to become a payment claim under the BCIPA;
16.6.2 If the contractor withdraws a payment claim for the purposes of pursing a charge under the Subcontractors’ Charges Act ( if applicable) then the payment claim will continue to be a progress claim under this contract and be effective from the original date it was submitted to the client;
16.7 A payment claim can be served on the client within the later of:
16.7.1 24 months from when all the works have been completed; or
16.7.2 12 months from the expiry of any retention period (if applicable).
16.8 If a payment claim is served on the Client, then the parties agree that if the client is to service a payment schedule on the contractor that service of such payment schedule is to be effected with ten (10) days of the payment claim being served on the client.
16.9 If the contractor is not paid for any of the works undisputed by the client or deemed valid by the courts or an adjudicator under the BCIPA on the due date specified in any invoices, progress claims or payment claims sent to the client pursuant to the contract, without prejudice to any other right or remedy, all outstanding monies shall bear interest on daily balances until paid at the reserve bank official interest rate plus 10% and such money together with all interest shall be recoverable forthwith from the client.
17 RETENTION OF MONIES
17.1 The parties agree that no monies are to be retained.
17.2 If the contractor does not comply with a reasonable direction of the Client to remedy and defects in the works before the expiry of the defects liability period, the client may have that work carried out by others and the reasonable cost of same will constitute a debt due, owing and payable by the contractor to the client. The client may set-off such debt against a retention held which becomes due, owing or payable to the contractor in connection with this contract
18 COOLING-OFF PERIOD
18.1 If this contract is a regulated contract, then the client may withdraw from the contract within five (5) business days after the receipt day for the contract.
18.2 If five (5) business days have elapsed since the contract was entered into there is no receipt day for the Contract, the client may withdraw from the contract.
18.3 Nothing in clause 18.2 affects the right of the client to withdraw from the contract under clause 18.1 if a receipt day subsequently applies to the contract.
18.4 Part 6 of the DBCA applies with respect to the withdrawal from the contract by the client during this cooling off period.
19 WARRANTIES
19.1 The contractor must carry out and complete the works;
19.1.1 Using materials that are of good quality and suitable for the purpose for which they are being used, and unless otherwise stated, are new;
19.1.2 In the accordance with accepted trade practise and professional manner;
19.1.3 With all reasonable care, skill and expertise;
19.1.4 Complying with all the terms and provisions of the contract documents;
19.1.5 Complying fully with the relevant law and all legal requirements;
19.1.6 Complying with all reasonable directions and instructions from the client; and
19.1.7 By the completion date.
19.2 The contractor must supply everything necessary to complete the works, including but not limited to, all tools and materials.
19.3 The contractor may engage subcontractors or any third party for the purpose of completing the works provided such person(s) are careful, skilled and experienced in their respective trades or occupations. The contractor will be solely responsible for any and all payments to any of its subcontractors or third party for that part of the works performed by it.
20 ACCESS
20.1 The quotation is based on a continuous work programme, unless otherwise stated. If the client or events, people or circumstances beyond the immediate control of the contractor causes the works to be delayed, then the performance of the contractor’s obligations under this contract shall be suspended for the period of such delay and the completion date shall be extended accordingly.
20.2 Where the contractor has been granted an extension of time under this clause, the client shall pay to the contractor such extra costs as are necessarily incurred by the contractor by reason of the delay.
21 DISPUTE RESOLUTION
21.1 Any dispute between the client and the contractor arising under or in connection with this contract shall;
21.1.1 In the first instance, be referred by one party to the other and the party shall use all reasonable endeavours to resolve the difference or dispute without resort to future process; and
21.1.2 If the difference or dispute cannot be resolved in such a manner within five (5) days of the difference or dispute arising then it shall be referred to an Expert.
21.2 As to that determination;
21.2.1 The expert acts as an expert and not as an arbitrator;
21.2.2 The expert must take written submission from each party if those submissions are received within the time limit by the expert;
21.2.3 The expert’s decision is final and binding;
21.2.4 The expert is obliged to give reasons;
21.2.5 Each party must direct the expert to provide a decision within five (5) Business Days of its appointment; and
21.2.6 The expert’s costs shall be paid by the party determined by the expert to be the party responsible for payment of the expert’s costs.
21.3 Nothing contained herein shall override the rights of the parties to adjudication under the BCIPA (if applicable).
22 LIMITATION OF LIABILITY
22.1 Subject to clause 22.2 herein and to the extent permitted by the Trade Practices Act and relevant state legislation, the sole obligation of the contractor under this contract is to effect the Works and repair or replace (at the seller’s discretion) any parts which are found to be defective during the defect liability period and in no event shall the contractor be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the products and any indirect, special or consequential damages or injury to any person , corporation or other entity.
22.2 If any goods or services supplied pursuant to this contract are supplied to the client as a ‘consumer’ of goods or services within the meaning of that terms in the Trade Practises Act 1974 as amended or similar state legislation the client will have the benefit of certain non excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Trade Practises Act or similar legislation is so conferred. However, if the goods or services are good or services not ordinarily acquired for personal, domestic or household use or consumption pursuant to s 68A of the Trade Practices Act and similar provisions of relevant state legislation, the contractor, at its election, limits its liability to the payment of an amount equal to the lowest of:
22.2.1 The cost of replacing the goods or services;
22.2.2 The cost of repair of the goods or services; or
22.2.3 The cost of having the goods or services repaired or replaced.
22.3 Subject to Clause 22.2, the contractor is not to be liable for default or failure in performance of its obligations pursuant to the contract resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials including ink, chemicals and paper, labour or transportation or any other cause beyond the reasonable control of the contractor.
22.4 Subject to 22.2, the contractor is not responsible for any loss caused by an error or defect in the products or errors or faults caused by a consumable product (e.g. fuse, washer etc) or water, sewerage services or power supplied or not supplied by any person or entity.
23 NOTICES
23.1 Any notice required to be given by one party to the other party under this contract must be in writing and;
23.1.1 Delivered by hand at the address of the addressee set out in this contract or the other address (if any) notified by the other party to be the address for service of notices;
23.1.2 Sent by ordinary prepaid post to that address; or
23.1.3 Sent by email
23.2 A notice is deemed given and received;
23.2.1 If delivered, upon delivery;
23.2.2 If sent by post, on the 2nd Business Day (at the address to which it is posted) after posing; or
23.2.3 If sent by email before 4pm on a business day at the place of receipt, on the day it is sent and otherwise on the next business day.
24 INCONSISTENCY
In the event of an inconsistency between this contract and any other document, representation or practice, then the provisions hereof will prevail to the extent of such inconsistency.
25 SEVERABILITY
If any term covenant or condition herein or any part thereof or expression therein or the application thereof to any person or circumstance shall be or become invalid or unenforceable the remaining terms covenants and conditions shall not be affected thereby.
26 JURISDICTION
This contract shall be governed by the law of the state of Queensland and any proceedings in respect of any cause of action arising hereunder may be instituted heard and determined at a court of competent jurisdiction in Queensland selected by the contractor and such court shall possess territorial jurisdiction to hear and determine any such proceedings.
27 ENTIRE AGREEMENT
This contract contains the entire agreement between the parties and both parties agree that there are no other terms, representations, or understandings except those set out in this contract.
28 PRIVACY ACT (CTH)
The personal information provided by the client will be held by the contractor. The contractor may use the personal information provided by the client for the purposes of completing the works and for direct marketing of products and other services offered by the contractor or an organisation it is affiliated with or represents. The client has the right to request not to receive direct marketing materials and the client consents to the contractor collecting and using its personal information as specified above.
29 HEAD CONTRACT TERMINATION
If the head contract is terminated for any reason then the contractor will be relieved of its obligation to perform this contract, without prejudice to any claim the contractor may have against the client for loss and damage suffered by the contractor as a result of the termination of the head contract.
30 DEFINITIONS
In this contract and in any instrument created pursuant to or in accordance with it, unless the context otherwise requires;
Term / Definition
BCIPA Buildings and Construction Industry Payments Act 2004;
Business Day Means any day except
i (i) Saturday or Sunday
ii (ii) Queensland public or bank holidays
iii (iii) 27 to 31 December (inclusive)
Client and You The party detailed on the front page of this Contract
Completion Date The date for complete of the Works under this Contract
Contract The contract to carry out the Works between the Client and the Contractor by the acceptance of the quotation by the Client
Contract Documents Includes all drawings, plans and specifications an all other information provided by the Client to the Contractor
Contract Information Statement The contract information statement provided to you to be the Contractor if the DBCA applies to this Contract
Contractor The party detailed on the front page of this contract
Terms and Conditions Defects Liability Period The period as set out in the quotation to this contract (if applicable)
DBCA Domestic Building Contracts Act 2000
Expert Appointment by agreement between the parties or failing agreement
