The Details apply to these Service Terms (Feb 23) (Terms). These documents together constitute the agreement between the parties (Agreement).
1. Agreement
The Agreement becomes legally binding, upon you:
a. counter signing and returning the Details;
b. paying an Advanced Payment; or
c. continuing to request that we perform work after receiving the Agreement.
2. Interpreting the Agreement
Defined terms and the rules of interpreting the Agreement are set out in clause 23.
3. Hierarchy
If there is any inconsistency between these Terms and the Details, the Details prevail to the extent of the inconsistency.
4. Our obligations
4.1 General
We will provide our Services:
a. in a professional manner with due care, skill and diligence;
b. in accordance with all laws and applicable industry standards;
c. in accordance with your reasonable directions and requests; and
d. in accordance with the Agreement.
4.2 Communication and cooperation
We will communicate and cooperate with you and report to Your Representative as reasonably required.
4.3 Our team
We warrant our Personnel engaged in the provision of the Services are all appropriately qualified, competent and experienced.
4.4 Site
Where we are providing Services at the Site, we must:
a. provide Your Representative with adequate and reasonable notice of our Personnel attending the Site;
b. when our Personnel are present at Site, ensure they:
i. comply with all reasonable directions and procedures of yours relating to work health and safety and security in effect at the Site which we have been notified of (including those forming a part of your site induction).
ii. perform our Services in a manner that minimizes interruption and interference to the Site;
iii. follow industry best practice safety procedures relevant to the inspection of roofs;
iv. not use the Site for any purpose that is not reasonably necessary for the performance of our Services; and
v. use reasonable endeavours to ensure any invitees of ours also comply with our obligations set out in subclauses 4.4bi – 4.4biv.
4.5 Tenders
Where we are providing tender services to you, we must:
a. disclose to each Prospective Provider when making a RFT that we are a referrer of yours and that we receive a fee for conducting the tender process on your behalf;
b. evaluate the tenders in accordance with your criteria including your criteria weightings;
c. not hold ourselves out as having authority, or doing any act that might reasonably create the impression that we have authority, to bind you in any way;
d. not make any commitments or incur any liability for or on your behalf;
e. not make or give any warranties or other promises regarding the work to which the tender relates;
f. not produce any promotional material for you;
g. not charge a Prospective Provider a fee for making a Referral; and
h. not use your name, logo or trade marks without your express consent.
4.6 Work schedule
a. Where we provide a Scheduled Date, you acknowledge that it is our best estimate.
b. We will take reasonable steps to minimise delays on our part and the impact such delays may cause.
c. You agree that we are not responsible for any Loss suffered by you as a result of our delay in meeting a Scheduled Date.
d. If we become aware of any delay (or likely delay) to a Scheduled Date, we will promptly notify you and provide you with a revised date.
5. Your obligations
During our performance of the Services, you must:
a. ensure the Site is available on the Scheduled Date/s we intend to be present;
b. cooperate with us and ensure that your Personnel cooperate and assist us, as we reasonably require; and
c. provide all information and documentation, as we reasonably require.
6. Variations
6.1 Varied Services
You may, at any time, request we vary the Services by providing us with notice. We will respond to such a request within a reasonable time and subsequently provide a quotation in accordance with clause 6.2.
6.2 Further quote
Before approving a variation requested under clause 6.1, you must have been provided with a quotation of the time, cost and programming effects of the proposed variation. On receipt of a quotation, you may in your sole discretion, but within a reasonable time, approve or reject the variation by letting us know.
6.3 Price
Our fees and expenses for performing varied Services will be in accordance with any variation approved by you under clause 6.2.
7. Your representative
a. You appoint and authorise your representative named in the Details (Your Representative) to act on your behalf in connection with the Agreement and to provide us with directions relating to the performance of our Services.
b. You agree that:
i. Your Representative is authorised to agree to variations of the Agreement to approve expenses and to agree to Services variations;
ii. we may rely solely on the direction, consent or instructions provided to us by Your Representative; and
iii. our communications, including notices under the Agreement, may only be directed to Your Representative, unless you request otherwise.
c. You may substitute Your Representative or limit or revoke the authority of Your Representative upon providing signed notice to us.
8. Price
8.1 Deposit (Where applicable)
a. You are required to make payment of the Deposit and any other advance payment requests we reasonably make from time to time (Advance Payment) to our nominated account.
b. Despite any other provision of these Terms, you agree that we may suspend the provision of Services until Advanced Payments requested are received.
8.2 Fees
a. Services will be performed strictly in accordance with the corresponding scope set out in the Details or other quotation.
b. Where any of our Assumptions are proven incorrect, we may reasonably review our fixed fee, upon providing notice to you.
8.3 Expenses
a. All expenses relating to the performance of our Services will be paid or reimbursed by you.
b. We will not incur expenses without your prior consent, unless the expense is reasonably required in light of the nature of the Services, and urgency makes it impractical for us to do so.
c. Upon your request, we will promptly substantiate any expense incurred.
9. Invoices and payment
9.1 Invoicing
a. Our tax invoices (Invoices) will comply with the GST Law and will detail:
i. the expenses incurred on your behalf;
ii. our fees; and
iii. the amounts of Advanced Payments we hold.
b. Our Invoices will be issued at intervals set out in the Details, or where unspecified, at times we reasonably consider appropriate.
c. Our Invoices are due for payment 14 days after issue.
9.2 Payment
a. You must make payment of the amount claimed in our Invoice without set-off, counter-claim, holding or deduction.
b. Subject to clause 9.3, if you fail to pay our Invoice in full by the due date, we may:
i. bring a Claim for recovery against you;
ii. list your default on your credit report;
iii. require you to pay further Advanced Payments, for any Services (or any part of the Services) which have not been performed;
iv. charge you simple interest at a rate of 10% per annum on the overdue amount which will begin accruing on the first day that payment is overdue; and/or
v. cease or suspend the provision of our Services (or any part of our Services).
c. You agree to indemnify us against all charges, costs and expenses (on a solicitor client basis) we incur in recovering any amount outstanding under this Agreement from you.
9.3 Invoice dispute
a. If you dispute the whole or any portion of the amount claimed in an Invoice, you must:
i. pay the portion which is not in dispute, in accordance with subclause 9.2; and
ii. notify us within 5 five days of receipt of the Invoice, detailing the reasons you dispute the remainder of the invoice (Disputed Invoice Notice).
b. Upon receipt of your Disputed Invoice Notice, we will within a reasonable time address the concerns you’ve raised (Disputed Invoice Response).
c. If the dispute is not resolved within 14 days of your receipt of our Disputed Invoice Response, we may exercise our rights under sub clause 9.2b.
9.4 GST
a. Unless specifically stated in the Agreement, all amounts payable to us under the Agreement are exclusive of GST.
b. If GST is imposed on any supply made in connection with the Agreement and GST has not been accounted for in determining the consideration payable for the supply, we may recover from you an amount to account for GST, being the value of the supply calculated in accordance with the GST Law multiplied by the prevailing GST rate.
10. Confidentiality
10.1 Recipient must keep Confidentiality Information confidential
Subject to sub clause 10.2, each party must:
a. keep all Confidential Information confidential;
b. only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
c. procure that its Personnel comply with sub-clauses a and b.
10.2 Disclosure exemptions
The obligations in sub-clause 10.1 do not apply:
a. to the extent necessary to enable a party to make any disclosure required by law;
b. to the extent necessary to enable a party to perform its obligations under the Agreement;
c. where disclosure is required for any quality assurance or insurance purposes;
d. to the extent necessary to receive professional (legal or financial) advice; or
e. to any disclosure agreed between the parties.
11. Subcontracting
a. We are permitted to use other persons to provide some or all of the Services.
b. We are responsible for the work of our Subcontractors.
c. Any work undertaken by our Subcontractors will be to the same standard required of us in the Agreement.
12. Intellectual property rights
a. Nothing in the Agreement transfers IPR’s belonging to a party.
b. We grant you a non-exclusive, transferrable, sublicensable, fee free license to use and reproduce the IPR’s in any Deliverables, solely for the purpose for which they were provided.
c. You grant us a non-exclusive, transferrable, sublicensable, fee free license to use and reproduce the IPR’s in any material you provide to us, for the sole purposes of us performing the Services and/or providing the Deliverables, as the case may be.
d. You warrant that you have the right to grant the licence set out in sub clause 12c in respect of all IPR’s you provide to us.
e. You acknowledge that our materials may comprise third party IPR’s. We will only incorporate third party IPR’s in our materials, other than IPR’s you have provided to us, where we are capable of granting you a licence on terms equivalent to those set out in sub clause 12b.
13. Insurance
13.1 Professional indemnity policy
We must effect and maintain a professional indemnity policy of insurance during the term of this Agreement, covering our performance of the Services, for an amount no less than $1 million.
13.2 Workers compensation policy
We must effect and maintain a workers compensation policy of insurance for all our employees in accordance with applicable legislation and must ensure that all Subcontractors of ours effect and maintain workers compensation policies.
13.3 Public liability policy
a. Each party must effect and maintain a public liability policy of insurance at a prudent level.
b. Our public liability policy must cover all your Personnel at any of our premises.
c. Your public liability policy must cover all our Personnel at the Site and any other premises or facility of yours our Personnel are required to attend.
14. Conflicts
14.1 No conflict
We warrant that, at the date of signing the contract, no Conflict of Interest exists or is likely to arise in the performance of our obligations under the Agreement. If during the term of the Agreement, a Conflict of Interest arises, we will promptly notify Your Representative in writing of it.
14.2 Notice of conflict
On receipt of a notice under clause 14.1, you may:
a. approve us to continue to perform the Services, which approval may be subject to reasonable conditions to ensure appropriate management of the conflict; or
b. where in your reasonable view the Conflict of Interest cannot be appropriately managed, exercise your rights of termination under the Agreement.
15. Privacy
a. We will:
i. collect, use and store your personal information in accordance with our privacy policy; and
ii. comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws.
b. You agree that you provide us with the consents set out in our privacy policy.
16. Termination and reduction
16.1 Termination at conclusion of Services
Once we have completed the performance of our Services, we will let you know and the Agreement will come to an end.
16.2 Termination for convenience
At your sole discretion, you may, at any time and without giving any reasons terminate the Agreement by providing written notice of at least 30 days. If the contract is so terminated, you will be liable only for:
a. payment for services rendered before termination at the rates, if any, provided for those Services in the Agreement, or if no rates are provided, at reasonable rates; and
b. subject to clauses 16.4 and 16.5, any costs not included in the amount payable under clause 16.1a directly attributable to the termination or partial termination of the Agreement reasonably incurred by us.
16.3 Termination for cause
a. If we notify you of a Conflict of Interest, either party may, by written notice, immediately terminate the Agreement.
b. If a party:
i. goes into liquidation or a receiver or a receiver and manager or a mortgagee’s or chargee’s agent is appointed to that party; or
ii. fails, within 14 days after receipt of written notice, to remedy any default in performance or observance of the terms and conditions of the Agreement,
either party may, by written notice immediately terminate the Agreement.
16.4 Notice of termination
Upon receipt of a notice of termination, we must:
a. stop work as specified in the notice;
b. take all available steps to minimise loss resulting from that termination; and
c. continue work on any part of the Services not affected by the notice.
16.5 Partial termination
In the event of partial termination, your liability to pay fees will, in the absence of agreement to the contrary, abate proportionately to the reduction in the Services.
16.6 No loss of profits
We will not be entitled to compensation for loss of prospective profits from you.
17. Disputes
17.1 Notification
A party claiming that a dispute has arisen under or in connection with the Agreement (Dispute), must notify the other party giving details of the Dispute.
17.2 Procedure
a. The parties must:
i. negotiate in good faith to settle, as soon as practicable, any Dispute; and
ii. if the parties are unable to resolve the Dispute within 15 business days of notice being provided, either:
A. appoint a mediator to mediate the Dispute; or
B. if the parties are unable to agree on a mediator, refer the Dispute for mediation to a mediator nominated by the chairman of the Resolution Institute or the chairman’s nominee.
b. Unless the parties otherwise agree, any mediation will take place in the Gold Coast by a member of the Resolution Institute under the Resolution Institute’s Mediation Rules.
17.3 Costs
a. The parties will share equally the mediator’s fees and disbursements and other costs of the mediations.
b. Each party will meet its own costs of and in connection with the mediation.
18. Liability
18.1 Liability that cannot be excluded
Nothing in the Agreement seeks to exclude or limit liability to the extent that such liability cannot be excluded or limited under any applicable laws. The limitations of liability under subclauses 18.3 and 18.4 do not apply to liability in relation to:
a. personal injury, including sickness and death;
b. loss of, or damage to, tangible property;
c. an infringement of IPR’s or moral rights;
d. any fraudulent act or omission of a party or that party’s Personnel; or
e. any breach by a party or its Personnel of any obligation under clause 10.
18.2 Contribution and mitigation
a. Neither party will be liable to the other whether in contract, tort (including negligence) or otherwise in connection with the Agreement, for Loss, to the extent that the other party (or the other party’s Personnel) contributed to the loss or damage.
b. A party who suffers Loss must use reasonable steps to mitigate its Loss. The other party will not be responsible for any Loss to the extent that the injured party could have avoided or reduced the amount of the Loss by taking reasonable steps to mitigate its Loss.
18.3 Consequential Loss
Subject to clause 18.1, to the extent permitted by law, neither party will be liable to the other for any Consequential Loss suffered or incurred whether in contract, tort (including negligence) or otherwise in connection with the Agreement.
18.4 Liability cap
Subject to clause 18.1, to the extent permitted by law, the maximum liability of a party to the other, whether in contract, tort (including negligence) or otherwise in connection with the Agreement (excluding under an indemnity relating to the recovery of money owing under the Agreement), is limited to the greater of:
a. the amount of fees contemplated under the Agreement; and
b. the amount covered by an insurance policy the party holds covering the event giving rise to the liability, less the insurance premium.
18.5 Liability of individuals
a. We assume all liability, and have exclusive responsibility for our Services provided to you by any of our employees (Our Team).
b. You agree not to make a Claim against any member of Our Team whose conduct we are liable for.
c. Despite clause 18.5b, if any member of our team incurs personal liability to you in connection with our Services, their liability is limited under clause 18.4.
18.6 Australian Consumer Law
To the extent that there is a failure by us to comply with any applicable guarantee under sections 54 to 62 of the Australian Consumer Law in respect of services that are not of a kind that are ordinarily acquired for personal, domestic or household use or consumption then, to the extent permitted by law, our liability for failure to comply with any such guarantee is limited to one or more of the following, at our election:
a. supplying the services again; or
b. payment of the cost of having the services supplied again.
For clarity, the limitations of our liability under this clause 18.6 do not apply to limit any other liability of ours under the Agreement.
19. Warranties
19.1 Mutual representations and warranties
Each party represents and warrants to the other that:
a. it has full authority to enter into this Agreement;
b. it is not bound by any agreement with any third party that may adversely affect this Agreement;
c. it has and will maintain throughout the term of the Agreement, all necessary powers, authority and consents to enter into and fully perform its obligations and duties under the Agreement; and
d. it has complied and will comply with all applicable laws binding on it.
19.2 Reliance on representations and warranties
Each party acknowledges that the other party has entered into this Agreement in reliance on the representations and warranties in this clause.
19.3 Notification
Each party must immediately notify the other party in writing if:
a. anything happens which prevents it from meeting or complying with any of these representations and warranties;
b. it ceases to carry on business; or
c. any step is taken to enter into any arrangement between the party and its creditors.
20. Assignment
a. Subject to sub clause b, neither party may assign, or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other party.
b. We may assign or novate our rights and obligations under the Agreement to any person we transfer our business to, provided the assignee undertakes in writing to you, to be bound by our obligations under the Agreement.
21. Nature of relationship
21.1 Not to represent as being partner or agent
We must not represent ourselves (and must ensure that our Personnel do not represent themselves) as being officers, employees, partners or agents of yours.
21.2 Not partner or employee under the Agreement
We will not by virtue of the Agreement be, or for any purpose be taken to be, an officer, employee, partner or agent of yours.
22. General
The parties agree:
a. (act reasonably) they will act reasonably in exercising all of their rights under the Agreement;
b. (force majeure) neither party will be in breach of its obligations under the Agreement to the extent that the failure arises as a result of any event or circumstance outside the reasonable control of the party which the party could not have been prevented or avoided by taking reasonable diligence or reasonable precautions;
c. (entire agreement) the Agreement sets out all the parties rights and obligations relating to the subject matter of the Agreement, and it replaces all earlier representations, statements, agreements and understandings except as stated otherwise in the Agreement;
d. (variations) subject to clauses 8.2b and 6 along with any other variations to scope which have been agreed to, the Agreement may only be amended in writing, signed by the parties;
e. (validity) if a provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down. Otherwise, the offending provision must be severed and the remaining provisions will operate as if the provision had not been included;
f. (waiver) clauses and rights in the Agreement can only be waived in writing signed by the waiving party. Failure or delay of a party in exercising a right under the Agreement does not waive the party’s rights. A waiver will only waive the particular rights in the particular circumstances and will not waive any other rights, or the same rights in other circumstances;
g. (notices) a notice or other communication connected with the Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post or by email to the address of the addressee set out in the Service Details or otherwise nominated by a party from time to time;
h. (further assurances) each must do anything and execute any document the other party reasonably requests, to give effect to the Agreement;
i. (survival) clauses 9, 10, 12, 13, 17 and 18 along with any other clause in the Agreement which is expressed to survive or by its nature survives, will survive termination or expiry of the Agreement;
j. (costs) each will bear their own costs in relation to the preparation, negotiation and execution of the Agreement and any variations to it; and
k. (governing law) the Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland. Each party submits to the jurisdiction of the courts of Queensland.
23. Definitions and interpretation
23.1 You and us
In the Agreement:
a. ‘you’ and ‘your’ mean the client or clients named in the Details; and
b. ‘we’, ‘us’ and ‘our’ are references to Independent Roof Inspections Pty Ltd ABN 14 146 729 357.
23.2 Definitions
In the Agreement unless the context indicates otherwise:
Advanced Payment has the meaning given in clause 8.1a.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Assumptions mean our understanding of you complying with your obligations in clause 4 and any other conduct of yours which we detail our fees are contingent upon, set out in the Details or other quotation.
Business Day means any day other than a Saturday, Sunday or public holiday in Brisbane.
Claim means any claim, action, proceeding, demand or investigation of any kind, and includes the allegation of a claim.
Confidential Information means all information disclosed by or on behalf of a party (Discloser) to the other party (Recipient) in connection with the Agreement or created using that information, which is confidential in nature and designated as confidential, or which a reasonable person receiving the information would realise is sensitive or confidential, and all information to the extent it is derived from that information. Confidential Information does not include any information which:
a. is or becomes public, except through breach of a confidentiality obligation;
b. the Recipient can demonstrate was already in its possession or was independently developed by the Recipient; or
c. the Recipient receives from another person on a non-confidential basis, except through breach of a confidentiality obligation.
Conflict of Interest includes engaging in any activity, or obtaining any interest, which is, or may create an appearance of being, likely to conflict with the fair and independent performance by us of, or to restrict us in performing, our obligations under the Agreement; and also includes any matters materially affecting the our ability to perform any of our obligations under the Agreement
Consequential Loss means:
a. indirect or consequential loss not arising as a natural consequence of a breach or other event giving rise to liability of a party;
b. any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity; or
c. loss of data.
Deliverables mean the material we are preparing for you to use and receive a benefit from in connection with the performance of our Services.
Deposit means the amount we request as an initial payment in advance, set out in the Details.
Details means the document entitled ‘Service Details’ that contains information about a specific agreement between the parties.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
IPR’s include all copyright, trade mark, design, patents, semiconductor or circuit layout rights and other proprietary rights, and any rights to registration of such rights existing anywhere in the world, whether created before or after the date of the Contract, but excludes moral rights.
Loss means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Personnel means officers, directors, employees, contractors and agents.
Prospective Provider means a third party that we have invited to participate in an RFT.
Referral means a Prospective Provider we have recommended to you, following our evaluation of tenders received in response to an RFT.
RFT means a request for tender we have initiated for the purposes of providing you with a Referral.
Scheduled Date means the date we will endeavour to complete Services or provide Deliverables by as set out in the Details.
Services mean the services we will perform as described in the Details along with any other services you request and we agree to provide under the Agreement.
Site means the geographic location or locations we will attend for the purposes of conducting our Services.
Subcontractor means any third party we engage to provide the Services or any part of the Services, but does not include our third-party software providers.
24. Interpretation
Unless it is expressly stated that a different rule of interpretation will apply:
a. a reference to an agreement includes any variation or replacement of the agreement;
b. if the due date for any obligation is not a Business Day, the due date will be the next Business Day;
c. all currency amounts are in Australian dollars;
d. headings are provided for convenience and do not affect the interpretation of the documents making up the Agreement;
e. “include”, “includes” and “including” must be read as if followed by the words “without limitation”;
f. if a word or phrase is defined its other grammatical forms have corresponding meanings;
g. agreements, representations and warranties made by two or more people will bind them jointly and severally;
h. a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation;
i. a person includes the person’s executors, administrators and permitted novatees and assignees; and
j. no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it.
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