(Effective 1 February 2016)
Helitec Structural agrees to perform the Works requested by the Client on the terms and conditions set out below. Words in ITALICS are defined at Clause 35.1 below.
1. Quotations, Acceptance & Contracts
1.1 Clauses 9.1, 12.5, 18.8, 23.4, 32.1 and 33.1 shall apply to the Agreement unless or to the extent the Quotation or Acceptance expressly specifies otherwise.
1.2 The Client acknowledges that the submission of a Quotation by Helitec Structural is not an offer the acceptance of which will give rise to a contract.
1.3 Subject to Clause 1.4:
(a) by signing and returning the Works Order to Helitec Structural, the Client offers to enter into an Agreement with Helitec Structural in accordance with the Contract Documents, and
(b) Helitec Structural must provide the Client with a copy of the Acceptance signed by Helitec Structural not later than five (5) clear Business Days after the Agreement has been entered into.
1.4 If the Contract Price is not greater than $5,000.00 (inclusive of GST) and the Works are not Residential Building Work, the Client shall be deemed to have accepted these terms and conditions and the Quotation and entered into an agreement with Helitec Structural if the Client:
(a) gives or continues to give Helitec Structural instructions to carry out the Works after receiving the Quotation, or
(b) verbally accepts the Quotation.
1.5 Notwithstanding Clause 1.4, Helitec Structural may insist on the Client accepting the Quotation and these terms and conditionsin writing by signing the Works Order or another form of written acceptance.
1.6 An Agreement made in accordance with Clauses 1.3 and 1.4 will be wholly documented by (in descending order of precedence) the Quotation (including the plans and specifications referred to in the Quotation), any specific terms agreed in writing and set out in the Works Order and these terms and conditions, which documents shall constitute the entire Agreement and will supersede all prior negotiations, proposals and correspondence between the parties.
2. When Clauses do not Apply
2.1 Clauses 1.3(b), 3, 8.2, 14.1 and 20 will only apply where the Works are Residential Building Work and the Contract Price exceeds the Statutory Threshold.
2.2 Clause 14.2 will only apply where:
(a) the Works are not Residential Building Work, or
(b) the Works are Residential Building Work but the Contract Price does not exceed the Statutory Threshold.
3. Cooling Off Period
3.1 Subject to clause 2.1, the Client may rescind the Agreement by serving a notice in writing in accordance with Clause 3.2:
(a) within five (5) clear Business Days after the Client has been provided with a signed copy of the Acceptance, or
(b) if the Client has not been provided with a signed copy of the Acceptance, within five (5) clear Business Days after the Client becomes aware that they were entitled to a signed copy of the Acceptance.
3.2 A notice of rescission under Clause 3.1 must state clearly that the Client rescinds the Agreement and must be served on Helitec Structural by;
(a) handing it to the holder of the contractor’s licence personally,
(b) leaving it at the address shown in the Quotation as the address of the holder of the contractor’s license, or
(c) by serving it on the holder of the contractor’s license in accordance with Clause 33.2.
3.3 If a notice of rescission is given in accordance with Clauses 3.1 and 3.2:
(a) the Agreement will be taken to be rescinded from the time it was entered into,
(b) Helitec Structural may retain out of any money already paid by the Client the amount of any reasonable out-of-pocket expenses Helitec Structural incurred before receiving the notice of rescission,
(c) Helitec Structural shall be entitled to payment of a reasonable price for any Works carried out prior to Helitec Structural receiving the notice of rescission,
(d) Helitec Structural must promptly refund all other moneys paid to Helitec Structural under the Agreement, and
(e) the Client shall not be liable to Helitec Structural in any way for rescinding the Agreement.
4. Quality of Construction
4.1 All work performed by Helitec Structural under the Agreement shall comply with:
(a) the Building Code of Australia, to the extent required under the Environmental Planning and Assessment Act 1979,
(b) all relevant codes, standards and specifications that the work is required to comply with under any law, and
(c) the conditions of any relevant Building Approvals.
5. Helitec Structural’s Obligations & Warranties
5.1 Helitec Structural shall carry out and complete the Works referred to in the Quotation.
5.2 Helitec Structural warrants that to the extent required by applicable Home Building Laws:
(a) it holds all licenses required to carry out the Works,
(b) the Works will be performed in a proper and workmanlike manner and in accordance with the Contract Documents,
(c) all materials supplied by Helitec Structural will be good and suitable for the purpose for which they are used and, unless otherwise stated in the Quotation, those materials will be new,
(d) the Works will be performed in accordance with, and will comply with, the Home Building Law,
(e) the Works will be performed with due diligence and within the time stipulated in the Quotation and the Agreement, or ifno time is stipulated, within a reasonable time,
(f) the Works and any materials used in performing the Works will be reasonably fit for the specified purpose or result, if the Client expressly makes known to Helitec Structural, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of Helitec Structural, the particular purpose for which the work is required or the result that the Client desires the work to achieve, so as to show that the Client relies on Helitec Structural’s or person’s skill and judgment.
6. Client’s Obligations
6.1 The Client shall pay the Deposit and the balance of the Contract Price in accordance with the Agreement.
6.2 Without limitation, the Client shall comply with clause 12.
7.1 The Deposit shall be:
(a) Where the Works are Residential Building Work, the lesser of the amount stated in the Quotation, if any, and 10% or,
(b) In all other cases, the greater of the amount stated in the Quotation, if any, and 10%.
7.2 The Client shall pay to Helitec Structural the Deposit, if any, as follows:
(a) If the Works are Residential Building Work above the Statutory Threshold the later of the following:
(i) the second Business Day after the day on which Helitec Structural gives to the Client a certificate evidencing insurance under the NSW Home Building Compensation Fund in relation to the Works, and
(ii) the next Business Day after the Agreement is entered into.
(b) In all other cases, the next Business Day after the Agreement is entered into.
8. Accuracy of Contract Documents
8.1 All Contract Documents, including any Variations to plans and specifications, are taken to form part of the Agreement.
8.2 Any agreement to vary the Agreement, or to vary the Contract Documents (including the plans and specifications), must be inwriting signed by or on behalf of each party to the Agreement.
8.3 The party responsible for the preparation of a Contract Document warrants:
(a) the document is accurate, and
(b) the suitability of the design, materials and methods of working specified in the document.<
8.4 If either party becomes aware of any error, ambiguity or inconsistency in or between the Contract Documents, or any detail not being given, that party shall give the other party written notice detailing the problem. The Client must within two (2) Business Days of receiving a notice or becoming aware of a problem, give written instructions as to how Helitec Structural is to proceed with the Works.
8.5 In the event that the Client refuses or fails to give written instructions to Helitec Structural within two (2) Business Days of a notice pursuant to Clause 8.4, the Client authorises Helitec Structural to determine the required detail necessary to resolve the error, ambiguity or inconsistency, however, Helitec Structural shall not be obliged to act under that authority.
8.6 If the required detail, as determined by the Client or Helitec Structural necessitates a change to the scope of the Works, the Client shall be deemed to have requested a Variation and the procedure at Clause 14 shall apply.
9. Commencement & Performance of Works
9.1 Subject to Clauses 9.2, 16 and 18.4 Helitec Structural shall carry out the Works within a reasonable time and as far as reasonably possible within the Completion Period.
9.2 Helitec Structural shall not be required to commence the Works until Helitec Structural has received:
(a) the Deposit, if any, and
(b) written evidence that the Client is the owner of the Site or is otherwise authorised to have the Works carried out on the Site.
9.3 In carrying out the Works Helitec Structural and its agents and employees shall observe all relevant occupational health and safety law and shall comply with all obligations under workers compensation legislation.
10. Building Approvals and Council Permits
10.1 Unless the Quotation specifies that Helitec Structural is responsible for obtaining Building Approvals or Council Permits, the Client either:
(a) warrants that the Client holds all necessary Building Approvals and Council Permits for the Works and must promptly provide Helitec Structural with copies of such Building Approvals and Council Permits and any other documents requested by Helitec Structural, or
(b) agrees to promptly obtain and pay for all Building Approvals and Council Permits.
10.2 Where Helitec Structural has agreed to apply and pay for the Building Approvals and/or Council Permits, the Client shall promptly sign all consents and documents required for Helitec Structural to make any application for the Building Approvals or Council Permits.
10.3 Notwithstanding clause 10.2, the Client shall at all times be responsible for the payment of fees, charges, taxes, costs and levies whatsoever associated with:
(a) Planning, Building Approvals and Council Permits for the Works,
(b) inspections conducted by or on behalf of a principal certification authority,
(c) complying with a condition of a Building Approval, including paying any levies or statutory contributions, and
(d) registrations relating to the title to the Site.
11. Underground Locations
11.1 Prior to Helitec Structural commencing the Works, the Client must advise Helitec Structural of the precise location of all underground services on the Site including, without limitation, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables and oil pumping mains.
11.2 The Client shall indemnify Helitec Structural from and against all and any claims, loss, damage costs and fines as a result of any damage to services not precisely located and notified to Helitec Structural unless such damage has been caused by Helitec Structural’s negligent act or omission.
12. Site Access, Services & Materials
12.1 The Client warrants that it has exclusive possession of the Site to carry out work including the Works. The Client must provide clear and free all weather access to the Site for delivery of materials and performance of the Works. If the Client does not provide all weather access, Helitec Structural may carry out any work required to achieve such access and that work is deemed to be a Variation. Helitec Structural shall not be liable for any loss or damage to the Site including, without limitation damage to pathways, driveways and concrete, paved or grassed areas unless such damage was reasonably avoidable and caused by Helitec Structural’s negligence.
12.2 The Client must not:
(a) hinder Helitec Structural’s access or possession of the Site for the purposes of carrying out the Works,
(b) hinder the progress of the Works, or
(c) make inquiry of, issue directions to, or give instructions to, Helitec Structural’s workers or subcontractors. Communications must only be with Helitec Structural’s nominated person.
12.3 The Client may only have access to the Works at reasonable times and after giving reasonable prior notice for the purposes of inspecting the progress of the Works.
12.4 The Client must ensure Helitec Structural’s workers and subcontractors have access to power, lighting and water, access to toilets and hand washing facilities, access to a waste bin and spaces for parking and storage of material.
12.5 All materials delivered to Site by Helitec Structural and not required for the Works will remain the property of Helitec Structural.
13. Progress Claims
13.1 The Client shall pay to Helitec Structural the Contract Price and other money that becomes payable under the Agreement (without any set off) in the manner and at the times stated in the Agreement.
13.2 Helitec Structural may issue a Progress Claim in respect of work carried out by Helitec Structural on or after:
(a) the dates, periods or milestones specified in the Quotation, if any,
(b) every seven (7) days after the date of Acceptance, and
(c) when in Helitec Structural’s opinion the Works have reached the stage of Practical Completion.
13.3 Helitec Structural may serve a Progress Claim on the Client by any method that it is entitled to give notice under the Agreement.
13.4 The Client must pay the Contract Price progressively as claimed by Helitec Structural within seven (7) days of receipt of a Progress Claim.
14.1 Subject to Clause 2.1:
(a) A Variation to the Agreement or any Contract Document must be in writing and signed by or on behalf of each of theClient and Helitec Structural.
(b) A Variation may be requested by the Client or Helitec Structural. If a Variation is requested by the Client, Helitec Structuralshall, as soon as reasonably practicable, provide to the Client:
(i) an offer to vary the Agreement in the form of a signed Contract Variation specifying the price of the Variation and detailing the work, and any extension of time required, to carry out the Variation, or
(ii) a refusal to carry out the Variation.
(c) If the Client does not accept Helitec Structural’s offer by returning a copy of the signed Contract Variation to Helitec Structural within five (5) Business Days of receiving it, the offer shall be deemed to be withdrawn.
14.2 Subject to Clause 2.2, a Variation occurs if:
(a) The Agreement deems a Variation,
(b) The Client requests Helitec Structural to perform a Variation and subsequently Helitec Structural performs the Variationin accordance with the Client’s direction, or
(c) The Client and Helitec Structural agree in writing to a Variation, including Agreement as to the price of the Variation.
14.3 There shall be a deemed Variation if:
(a) the requirements of any statutory or other Authority necessitate a change to the Works, such Variation being that workrequired to effect that change,
(b) additional work is required, or the work is required to be performed in a manner or using equipment not anticipated, dueto the discovery of latent difficulties in the performance of the Works (including, without limitation, unknown subsurface conditions, poor weather conditions, poor access to the Site, safety risks, works by a third party not being completed where necessary for the Works to be performed),
(c) after the Agreement is made;
(i) a statutory or other Authority introduces or increases any tax, charge, levy or other regulation or any requirement that affects the Works that causes any increase in the costs of the Works, or
(ii) Helitec Structural’s wages are affected by a change to an Industry Award
14.4 If there is insufficient time to calculate the price of a Variation, or the Agreement deems a Variation, the price of the Variation will be charged to the Client at Helitec Structural’s reasonable costs.
14.5 The price of a Variation is payable progressively as the Variation is performed and is due at the same time as the next Progress Claim after it is carried out unless a different time is agreed.
14.6 The Client must not unreasonably withhold consent to any Variation which is required for the Works to comply with the law or a requirement of any Authority.
14.7 Notwithstanding any other Clause herein, Helitec Structural is under no obligation to carry out any Variation requested by the Client.
15. Site & Sub-Surface Conditions
15.1 Helitec Structural will be entitled to a Variation in circumstances where the Works are
(a) ground conditions at the Site different to that described in a Geotechnical Investigation Report referred to in theQuotation,
(b) where no Geotechnical Investigation Report is referred to in the Quotation, ground conditions at the Site including, without limitation, such things as:
(i) the existence of rock, clay or concrete
(ii) ground subsidence,
(iii) underground cavities,
(iv) underground water,
(v) surface water,
(vi) underground conduits, cables or pipes or
(vii) an other unknown ground condition, or
(c) Helitec Structural encountering any unexpected subsurface obstruction.
15.2 Helitec Structural shall notify the Client promptly if it encounters any conditions that deem a Variation or which would, in HelitecStructural’s opinion, adversely affect the design of the Works.
16. Acknowledgement of Possible Delays
16.1 The Client acknowledges that completion of the Works may be suspended by Helitec Structural pursuant to Clause 17 or delayed by any cause beyond the control of Helitec Structural including;
(a) a Variation or a request by the Client for a Variation;
(b) an act of God, fire, explosion, earthquake or civil commotion;
(c) any weather condition that, in the reasonable opinion of Helitec Structural, prevents work from being carried out in the usual manner;
(d) an industrial dispute;
(e) anything done or not done by the Client;
(f) delays in getting any approvals;
(g) the delay in the supply of materials;
(h) the period known as “Building Industry Shutdown” being a five (5) week period commencing on or about 22 December in each year; and
(i) the Contract Documents not being fully completed or made available to Helitec Structural by the date of the Agreement.
16.2 Helitec Structural shall not be liable for the failure to perform the Works or the Agreement to the extent and for so long as its performance is prevented or delayed without substantial fault or negligence by Helitec Structural because of a circumstance referred to in Clause 16.1.
16.3 Where the costs of the Works have increased due to any delay beyond the control of Helitec Structural, Helitec Structural shall be entitled to a reasonable increase in the Contract Price.
17.1 If the Client has not satisfied any condition for commencement of the Works in Clause 9.2 or is in breach of the Agreement Helitec Structural may suspend the carrying out of the Works and must promptly give to the Client written notice of the suspension and details of the breach.
17.2 Helitec Structural must recommence the carrying out of the Works within a reasonable time after the Client remedies the breach and gives Helitec Structural written notice of that fact.
18. Practical Completion
18.1 Helitec Structural will give notice to the Client of Practical Completion of the Works within five (5) Business Days of Practical Completion. A Progress Claim claiming the total Contract Price or the unclaimed balance of the Contract Price shall be deemed to be notice of Practical Completion of the Works.
18.2 If the Client disagrees that the Works have reached the stage of Practical Completion the Client must notify Helitec Structural in writing within five (5) Business Days of the notice of Practical Completion stating the reasons why the Works are not practically complete. Helitec Structural shall as soon as practicable after receipt of such notice:
(a) complete those things as may be necessary to bring the Works to the stage of Practical Completion and give the Client a further notice of Practical Completion, or
(b) reject the Client’s notice and/or initiate dispute resolution procedures.
18.3 If the Client fails to give a notice pursuant to Clause 18.2, the Client is deemed to have acknowledged that the Works havereached the stage of Practical Completion.
18.4 Helitec Structural will be entitled to a reasonable extension of the Completion Period if the Works are delayed for reasonsoutlined in Clauses 9.2, 16.1 and 17.1.
18.5 Helitec Structural may request a reasonable extension of the Completion Period pursuant to Clause 18.4 by notice in writing tothe Client at anytime.
18.6 If the Client wishes to dispute Helitec Structural’s entitlement to an extension of the Completion Period the Client must, withinfive (5) Business Days of receiving written notice from Helitec Structural, give Helitec Structural written notice:
(a) disputing the extension of the Completion Period , and
(b) detailing the reasons why the extension of the Completion Period is disputed.
18.7 If the Client gives notice under Clause 18.6, Clause 21 shall apply to the dispute.
18.8 Helitec Structural is not required to obtain any Certificate of Occupancy or Construction Certificate relating to the Works.
19. Defects Liability Period
19.1 This Clause applies if the Quotation specifies a defects liability period in relation to the Works.
19.2 The defects liability period shall commence on the date of Practical Completion.
19.3 The Client may, before the end of the defects liability period, give Helitec Structural one (1) list of defects in the Works that appear after the date of Practical Completion.
19.4 Helitec Structural must rectify defects that are Helitec Structural’s responsibility and which are notified to Helitec Structural during the defects liability period within a reasonable time.
20. NSW Home Building Compensation Fund
20.1 Helitec Structural must obtain a policy of insurance under the NSW Home Building Compensation Fund and provide the Client with a certificate evidencing the policy unless:
(a) the Contract Price for the Works totals less than the Statutory Threshold, or
(b) the Works relate to a new Multi-Story Residential Building.
21. Dispute Resolution
21.1 The parties must attempt to resolve any dispute or claim arising out of or under the Agreement by negotiation in good faith before either party commences any litigation in relation to the dispute or claim. Accordingly, if a party considers that a dispute or claim has arisen under the Agreement they must give written notice to the other party adequately setting out and providing details of the dispute.
21.2 Helitec Structural and the Client must meet within ten (10) Business Days of the giving of a notice pursuant to Clause 21.1 to attempt to resolve the dispute or claim or to agree on methods of doing so. The parties must be represented at the meeting by a person with authority to agree to a resolution of the dispute.
21.3 If the dispute is resolved the parties must write down the resolution and sign it.
21.4 The parties agree that anything done or said in the negotiations can not be revealed in any other proceedings.
21.5 Nothing in this Clause affects the rights of the parties pursuant to the Security of Payment Law or prevents either party from commencing urgent injunctive or interlocutory proceedings in a competent Court.
22. Default & Termination of Contract
22.1 This Agreement may be terminated in the circumstances provided by the general law, although this does not prevent the parties agreeing to additional circumstances in which the Agreement may be terminated.
22.2 Without limiting Clauses 22.1 and 22.3, a party may terminate the Agreement if:(a) the other party is in default of the Agreement,
(b) the non-defaulting party has served notice in writing on the party setting out details of the default and stating that theparty will be entitled to terminate the Agreement unless the default is remedied within a specified time of not less than 14 days,
(c) the party fails to remedy the default within 14 days of receiving a notice under Clause (b) above or such longer period as may be specified in the notice, and
(d) the non-defaulting party serves written notice of termination whilst the default remains unsatisfied.
22.3 If the Client fails to pay any money under the Agreement within seven (7) days of the due date for payment:
(a) Helitec Structural may terminate the Agreement by notice in writing to the Client,
(b) Helitec Structural shall be entitled to interest on the outstanding amount at the rate of 2.5% per calendar monthcalculated daily from the due date for payment and compounding monthly on the first day of each month until payment is received,
(c) the Client shall indemnity Helitec Structural from and against all costs and disbursements incurred or payable by Helitec Structural in connection with the recovery of monies owing by Helitec Structural (including, without limitation, legal fees on an indemnity basis, collection agency costs and bank dishonour fees), and
(d) Helitec Structural may cancel all or any part of the Works or works in connection with any other contract or contracts made with the Client to which these terms and conditions apply whereafter all amounts payable by the Client to Helitec Structural shall became payable immediately.
22.4 The Client agrees to pay to Helitec Structural, as genuine pre-estimate of Helitec Structural’s costs:
(a) a processing and handling fee of $20.00 in respect of each payment made under the Agreement that is not in satisfaction,or in satisfaction of the balance, of a Progress Claim, and
(b) a default fee of $50.00 in respect of any failure by the Client to pay a Progress Claim by the due date for payment or bythe corresponding day of each subsequent calendar month until the Progress Claim is paid in full.
23. Warranties & Representations
23.1 The Client warrants that the Works relate to ‘construction work’ or ‘related goods and services’ within the meaning of the Security of Payment Law and that the Security of Payment Law will apply to the Agreement unless the Client has specified otherwise in writing in the Works Order.
23.2 Subject to Clause 5.2 and except as expressly provided to the contrary in the Contract Documents, all representations, warranties, guarantees and conditions in relation to the Works (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
23.3 If the Client is aware (or should be aware) that the Works are for a particular purpose or are required to possess particular or uniform characteristics, the Client agrees to specify that purpose or those characteristics in writing in the Works Order.
23.4 The Client warrants that it has made its own enquiries in relation to the suitability of the Works and has not relied on any representation made by Helitec Structural in relation to their suitability for any particular purpose.
24. Limitation of Liability
24.1 The Client acknowledges that the Works are remedial in nature and that the future performance of the Works may be affected by factors outside of Helitec Structural’s control and for which Helitec Structural are not responsible and as such Helitec Structural accepts no responsibility and shall not be liable for any defects caused or contributed by:
(a) Structural deficiency, design or construction flaws, settlement and/or deterioration of the existing building or structurein which the Works are being carried out, and
(b) Flaws or failures in the footings of the existing building or structure in which the Works are being carried out.
24.2 Helitec Structural accepts no responsibility for:
(a) any loss or damage that may occur to surrounding walls, brickwork, render, pathways, gardens, trees, lawns, paintedfinishes, fittings and fixtures or any other property left on-site during the carrying out of the Works, and
(b) cleaning or repair costs attributable to dust or damage caused by any of the Works.
24.3 Helitec Structural’s liability to the Client (and any party claiming through the Client against Helitec Structural) for any claim for loss or damage (including legal expenses), whether arising in contract, tort or otherwise, in connection with the Agreement where the liability relates to the supply of services, Helitec Structural’s liability shall be limited to the lesser of the costs of: (i) supplying the services again, or (ii) payment of the costs of having the services supplied again.
24.4 Despite Clause 4.1, Helitec Structural shall not be liable for a failure to comply with Clause 4.1 if the failure relates solely to:
(a) a design or specification prepared by or on behalf of the Client (but not by or on behalf of Helitec Structural), or
(b) a design or specification required by the Client, if Helitec Structural has advised the Client in writing that the design orspecification will cause Helitec Structural to contravene Clause 4.1.
24.5 Helitec Structural shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resultingfrom or caused in any way by the carrying out of the Works.
25.1 In consideration for Helitec Structural entering into the Agreement, the Guarantor guarantees to Helitec Structural the performance by the Client of all of the Client’s obligations under the Agreement including any Variation.
25.2 If the Client does not pay any money due under the Agreement the Guarantor must pay that money to Helitec Structural on demand without deduction, set-off or counterclaim even if Helitec Structural has not tried to recover payment from the Client.
25.3 Even if Helitec Structural gives the Client extra time to comply with an obligation under the Agreement or does not insist on strict compliance with the terms of the Agreement the Guarantor’s obligations will not be affected.
25.4 Where a payment made by the Client or the Guarantor to Helitec Structural is set aside by law, the parties are restored to their respective positions prior to the payment being made and are entitled to exercise all rights under the Agreement.
25.5 If there is more than one (1) Guarantor:
(a) this guarantee shall be binding on each of them jointly and severally, and
(b) the release by Helitec Structural of any Guarantor from this guarantee does not affect the liability of any other Guarantor.
25.6 The Guarantor’s liability under this Clause is continuing and unlimited.
26. Personal Property Security
26.1 In this Clause ‘amendment demand’, ‘attaches’, ‘financing statement’, ‘financing change statement’, ‘security agreement’, ‘security interest’ and ‘verification statement’ have the meanings given to them by the PPSA.
26.2 The Client and the Guarantor, if any, hereby charge the Goods and all of their respective personal property as security for the performance by the Client of the Client’s obligations under the Agreement.
26.3 The Client acknowledges and agrees that:
(a) the Agreement constitutes a security agreement for the purposes of the PPSA, and
(b) a security interest exists in all goods (and their proceeds) previously supplied by Helitec Structural to the Client (if any) and in all future goods supplied (and their proceeds),
(c) the Client has received or will receive value as at the date of first delivery of the Goods (or any part of the Goods) and that Helitec Structural has not agreed to postpone the time the security interest attaches to the Goods, and
(d) where Helitec Structural has rights under Chapter 4 of the PPSA, those rights will continue to apply.
26.4 The Client shall:
(a) promptly sign all documents and provide any further information that Helitec Structural may reasonably require to register a financing statement or financing change statement in relation to a security interest granted to Helitec Structural under the Agreement or any other document required to be registered under the PPSA,
(b) notify Helitec Structural in writing of any intention to change the Client’s business practices to include the sale or leasing of goods of like kind to the Goods (or any part thereof) in the ordinary course of the Client’s business, and
(c) on demand reimburse Helitec Structural for all costs and expenses incurred in registering a financing statement or financing change statement.
26.5 The Client must not, without Helitec Structural’s prior written consent:
(a) register or permit to be registered a financing statement or financing change statement in relation to the Goods in favourof a third party,
b) register or cause to be registered a financing change statement in respect of a security interest granted under theAgreement,
(c) issue or permit any other person to issue an amendment demand to Helitec Structural unless all monies payable by theClient under the Agreement have been received by Helitec Structural in cleared funds.
26.6 Any requirement under the PPSA on the part of Helitec Structural to give a notice to the Client or any Guarantor shall not, to the extent that the requirement may be contracted out of (including, without limitation, under Section 115(1) of the PPSA), apply to the Agreement. Further, to the extent that that the Client and/or the Guarantor may waive the right to receive a notice under the PPSA (including, without limitation, notice in relation to a verification statement under Section 157(1) of the PPSA), the Client and the Guarantor waives that right.
26.7 The Client irrevocably authorises and licenses Helitec Structural to enter upon the Client’s property or premises, without notice, and without being in any way liable to the Client, if Helitec Structural has cause to exercise any of Helitec Structural’s rights under Section 123 of the PPSA, and the Client shall indemnify Helitec Structural from any claims made by any third party as a result of such exercise.
26.8 Helitec Structural and the Client agree to treat information of the kind referred to in Section 275(1) of the PPSA as confidential. Neither Helitec Structural or the Client will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA to any person except as required by law or the Agreement.
26.9 Helitec Structural and the Client acknowledge and agree that Clause 26.8 constitutes a confidentiality agreement pursuant to Section 275(6) of the PPSA.
27. Real Property Security
27.1 The Client and the Guarantor, if any, hereby charges all their right, title and interest in any real property or other assets capable of being charged that they, or any of them, own or hereafter own either solely or jointly, in favour of the Contractor as security for the performance of the Client’s obligations pursuant to the Agreement and authorises the Contractor to register a Caveat over the title of any such property in the event of a default by the Client under the Agreement.
27.2 Where the Works are Residential Building Work, Clause 27.1 will only apply to the extent that the property is the property on which the Works were carried out and a Court or Tribunal has made an order that the Client pays that amount to Helitec Structural.
27.3 The Client shall indemnify Helitec Structural from and against all costs and disbursements incurred or payable by Helitec Structural in connection with exercise of Helitec Structural’s rights under Clauses 27.1 and 27.2 (including, without limitation, legal fees on a solicitor-Client basis, stamp duty and registration fees).
28. Intellectual Property
28.1 Where Helitec Structural has designed, drawn or developed unique and/or original designs or drawings in connection with the Works, copyright in such designs or drawings shall vest in Helitec Structural.
28.2 The Client warrants that Helitec Structural is entitled to use all documents and drawings provided by the Client for the purposes of performing the Works and that such use will not infringe any third party’s intellectual property rights.
28.3 The Client shall indemnify Helitec Structural from and against all claims and all losses and damages incurred by Helitec Structural as a consequence of any claim against Helitec Structural for infringement of a third party’s intellectual property rights in connection with the carrying out the Works in accordance with a document that is; supplied by, prepared under the instruction of, or prepared from sketches provided by, the Client.
28.4 The Client authorises Helitec Structural to use any documents, designs, drawings or goods that Helitec Structural has created for the Client including photographs thereof for the purposes of marketing Helitec Structural’s business or entry into any competition.
29. Subcontracting & Assignment
29.1 Helitec Structural may subcontract the whole or any part of the Works but remains responsible for all of the Works.
29.2 Helitec Structural may assign the Agreement to any person. In the event of the assignment the Client may, if it has reasonable grounds to believe that the assignee will not comply with the Agreement, within seven (7) days of receiving notice of the assignment terminate the Agreement by 30 days written notice to Helitec Structural whereafter the termination will be effectiveunless the assignment is withdrawn.
30.1 Notwithstanding any other Clause herein Helitec Structural may cancel any agreement to which these terms and conditions apply at any time before the Works are commenced by giving written notice to the Client whereafter any deposit or other amount paid by the Client on account of the Works shall become immediately repayable to the Client. Helitec Structural shall not be liable for any consequential loss or damage in relation to any such cancellation.
30.2 If the Client purports to cancel the Agreement, without limiting any other right available to Helitec Structural, the Client shall be liable to Helitec Structural for any and all loss or damage suffered by Helitec Structural in connection with the cancellation including, without limitation, loss of profit in respect of the Works and/or loss of profits in respect of orders and opportunities foregone as a result of the scheduling of the Works.
31. Privacy Act 1988 (Cth)
31.1 The Client and the Guarantor, if any, consent to Helitec Structural obtaining a Credit Report from a credit reporting agency in relation to the Client and the Guarantor respectively for the purpose of:
(a) assessing the creditworthiness of the Client, and
(b) the collection of payments that are overdue in respect of commercial credit.
31.2 The Client and the Guarantor, if any, agree that Helitec Structural may exchange information about the Client and the Guarantor with those credit providers either named as trade referees by the Client or named in a Credit Report issued by a credit reporting agency for the following purposes:
(a) to assess an application for credit by the Client,
(b) to notify other credit providers of a default by the Client,
(c) to exchange information with other credit providers, where the Client is in default with other credit providers, and
(d) to assess the creditworthiness of the Client.
31.3 The Client and the Guarantor, if any, consent to Helitec Structural using any personal information collected by Helitec Structural for the following purposes or as required by law:
(a) the performance of the Works,
(b) the marketing of the supply of Works performed by Helitec Structural,
(c) the analysing, verifying and checking of the Client’s credit and/or payment status in relation to the performance of the Works,
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s accountin relation to the performance of the Works.
31.4 Helitec Structural may give information about the Client and the Guarantor to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client and/or the Guarantor, or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client and/or the Guarantor.
32.1 The Contract Price and all other monies payable by the Client pursuant to the Agreement are exclusive of GST.
32.2 If Helitec Structural incurs a liability to pay GST in connection with a supply to the Client pursuant to the Agreement, the consideration that the Client must pay to Helitec Structural for the supply is increased by an amount equal to the GST liability that Helitec Structural incurs in making the supply and the amount of the GST liability is payable at the same time and in thesame manner as the consideration in respect of the supply is payable.
32.3 Helitec Structural shall provide the Client with a tax invoice for any GST included in any payment made pursuant to theAgreement.
33.1 The parties agree that email shall be the primary method of contact and communication in relation to any matters arising under the Agreement.
33.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party,
(b) posted by ordinary prepaid mail to the other party’s address (including a Post Office Box) stated in the Quotation on the second Business Day following the date of posting, or
(c) sent by facsimile transmission to the parties’ facsimile number stated in the Quotation upon receiving confirmation of delivery of the transmission, or
(d) sent by email to the parties’ email address stated in the Quotation upon receiving confirmation of delivery of the email without error.
34.1 Payments may only be made by cash, bank cheque, electronic funds transfer or credit card (unless Helitec Structural agrees otherwise in relation to a payment). The Client agrees to pay a surcharge equal to 2.5% in respect any payment made via credit card.
34.2 The Client may not; (a) set off against or deduct from any monies payable under the Agreement any sums owed or claimed to be owed by Helitec Structural to the Client, or (b) withhold payment of any Progress Claim because the Progress Claim or part of it is in dispute.
34.3 The Agreement embodies the whole agreement between the parties relating to the subject matter of the Agreement and supersedes any and all oral and written negotiations and communications by or on behalf of any of the parties.
34.4 The terms in the Agreement may not be varied, waived, discharged or released, except with the prior written consent of the parties.
34.5 No right under the Agreement is waived or deemed to have been waived in relation to any particular instance unless in writing and signed by the party waiving the right. A party does not waive its right under the Agreement by granting an extension of time or any other forbearance to another party.
34.6 The Agreement shall be governed by and constructed pursuant to the laws of the State or Territory in which the Acceptance is received. The parties irrevocably submit to the jurisdiction of the Courts of that State or Territory in connection with any dispute relating to the Agreement. The parties further agree that the Court of competent jurisdiction located closest to Helitec Structural’s principal place of business in the relevant State or Territory shall be the appropriate Court for the hearing of any claims in connection with this Agreement.
34.7 The parties agree that a construction of the Agreement that results in all provisions being enforceable is to be preferred to a construction that does not so result.
34.8 If, despite the application of Clause 34.7, a provision of the Agreement is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words aresevered; and
(b) in any other case, the whole provision is severed, and the remainder of the Agreement continues in force.
35. Definitions & Interpretation
35.1 In these terms and conditions:
(a) “Acceptance” means the Works Order document signed by the Client in relation to the Quotation and these terms & conditions;
(b) “Agreement” means the agreement between the Client and Helitec Structural in accordance with Clauses 1.3 and 1.4;
(c) “Authority” means the Local Government, State or Federal Government, or any Government agency that has power toaffect the Works;
(d) “Building Approvals” means a development consent and/or a complying development certificate for the Works;
(e) “Business Day” means any day other than Saturdays, Sundays or public holidays;
(f) “Checklist” means the checklist provided to the Client in the Quotation as required under the Home Building Laws;
(g) “Client” means the party named as the Client or customer in the Quotation;
(h) “Completion Period” means the period ending on the date for completion specified in the Quotation or where a period oftime is specified in the Quotation the last day of that period commencing on the date on which the last condition precedent to commencement specified at Clause 8 has been satisfied;
(i) “Contract Documents” means these terms and conditions, the Quotation and included Checklist, the Acceptance and the plans (or measurements) and specifications, if any, specified in the Quotation;
(j) “Contract Price” means the amount or rates stated as the price in the Quotation, or if there was no written Quotation;
(k) “Deposit” means the amount determined in accordance with Clause 7.1;
(l) “Exclusions” means the exclusions described in the Quotation;
(m) “GST” has the same meaning as given to it in the A New Tax System (Goods and Services Tax) Act 1999;(n) “Guarantor” means the person or persons who have signed the Order as Guarantor and includes their executors, administrators, successors and assigns;
(o) “Home Building Law” means the laws in the State or Territory applying to the Agreement governing the rights of parties in the residential building work and, in New South Wales being the Home Building Act 1989 (NSW);
(p) “Multi-Story Residential Buildings” means a building containing two (2) or more dwellings and having more than three (3) storeys, not including an underground basement or any storey used solely as a car park;
(q) “NSW Home Building Compensation Fund” means a policy of insurance required in relation to the Works under Home Building Law;
(r) “Payment Schedule” means a Payment Schedule as defined by the laws in the State or Territory applying to the Agreement governing the rights of parties in the building and construction industry to obtain security for payment and, in New South Wales being the Building and Construction Industry Security of Payment Act 1999;
(s) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(t) “Practical Completion” means when the Works are complete except for minor omissions and defects that do not preventthe Works from being reasonably capable of being used for their usual purpose;
(u) “Builder’s Margin” means a margin of 25% plus GST or such other margin specified in the Quotation.
(v) “Progress Claim” means both a tax invoice as defined in the A New Tax System (Goods and Services Tax) Act 1999 and a Payment Claim in defined by the laws in the State or Territory applying to the Agreement governing the rights of parties in the building and construction industry to obtain security for payment and, in New South Wales being the Building and Construction Industry Security of Payment Act 1999;
(w) “Quotation” means the proposal, if any, provided by Helitec Structural to the Client in respect of the Works to which the Acceptance relates;
(x) “Residential Building Work” is given the meaning as outlined in Schedule 1, Section 2 of the Home Building Act 1989;
(y) “Security of Payment Law” means the laws in the State or Territory applying to the Agreement governing the rights of parties in the building and construction industry to obtain security for payment and, in New South Wales being the Building and Construction Industry Security of Payment Act 1999;
(z) “Site” means the address at which the Works are to be carried out as specified in the Quotation or if there was no written Quotation, in the Acceptance;
(aa) “Statutory Threshold” means the amount prescribed from time to time pursuant to the Home Building Law as the threshold contract price or reasonable market cost of labour and materials after which NSW Building Compensation Fund must be in force, in NSW being $20,000 (inclusive of GST) as at the effective date of these terms and conditions;
(bb) “Variation” means to vary the Works by; carrying out additional work, omitting any part of the Works or changing the scope of the Works; and
(cc) “Works” means the work described in the Contract Documents and includes Variations but excludes the Exclusions. 35.2 In the Agreement, unless otherwise indicated by the context:
(a) the singular includes the plural and vice versa;
(b) a reference to one gender includes a reference to all other genders;
(c) headings to Clauses are included for the sake of convenience only and will not affect the interpretation of the Clauses to which they relate;
(d) references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any Orders, regulations, instruments or other subordinate legislation made under the relevant statute;
(e) the word person means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not;
(f) the Agreement will bind each party’s legal personal representatives, successors and assigns; and
(g) where a party comprises two (2) or more persons the rights and obligations of such persons pursuant to the Agreementwill ensue for the benefit of and bind each of them jointly and severally.