Exclusions and Disclaimers
Aoun Constructions Licence Number – 190257C
A. the Fee is based on Aoun Constructions (hereafter called ‘AC’) assessment of the drawings. Should works additional to those specified in Item 6 be required, then a Variation Invoice will be issued.
We will advise you before commencing any work to that area once it has been assessed for approval of works.
B. Any other alterations requested (or otherwise required) by the Principal will be charge at the rates specified in G below.
C. the Principal agrees to obtain all permits and associated systems and paperwork (to the extent allowable by law) prior to commencement of the works by AC. AC accepts no liability as a result of delays caused by other parties.
D. Any drawings, designs and any other intellectual property etc supplied by AC remain the property of AC notwithstanding that they may have been supplied to the Principal for approval (or other reason).
E. Traffic Control and drainage are at the Principals expense.
F. Works additional to the scope of works (at Item 6 of this schedule) are payable at the following rates:
F1. Rock breaking. Rate: $99.00/m3 (plus GST);
F2. Labour $65.00 (incl GST) per hour;
F3. Supervisor $85.00 (incl GST) per hour;
F4. If Truck hire is required a fee $220.00 per hour with a minimum of 6 hours will be charged.
G. Notice of Delay. If a notice of delay is raised which results in temporary cessation, postponement or suspension of works, then items F and 21 of these terms will apply.
CONDITIONS OF CONTRACT FOR CONSTRUCTION WORKS
1. PRINCIPAL AND AOUN CONSTRUCTIONS
1.1 The principal is the person or organisation described in Item 1 of the Schedule (Principal).
1.2 Aoun Constructions Pty Ltd (AC) acknowledges that it is an independent contractor to the Principal and that there is no partnership, joint venture or any relationship of employer/employee or of principal/agent between AC and the Principal.
1.3 The Principal acknowledges that the Fee is calculated on free and uninterrupted access to Site and on a minimum access of 8 hours per day for up to 9 men. Any delay to completion of the Services beyond the Completion Date for Services due to a restriction of access caused by anyone or anything or any event other than that caused by AC (or his servant, agents or subcontractors) shall result in delay costs for which the Principal will be liable to AC at the rate in the Schedule.
1.4 The Principal acknowledges that it has been assumed by AC that there are no contaminants at Site. Further, it has been assumed by the AC that the Site is completely free of asbestos, fibrocement, hazardous chemicals or other contaminated material. The Principal agrees to assume all risk associated with any discovery of latent materials (including asbestos, fibrocement, hazardous chemicals or other contaminated material) (Latent Materials) that are materials other than those described in the scope of works. Any change in scope due to latent conditions and or the discovery of Latent Materials is to be undertaken by the AC at the rates contained in Schedule Item 8 G (or at rates otherwise agreed).
1.5 The Principal acknowledges and agrees to the exclusions and disclaimers listed in Item 8 of the Schedule.
1.6 The following definitions apply to this contract: Agreement means this contract. The words Agreement and contract are used interchangeably. Business day has the meaning defined in the Building and Construction Industry Security of Payment Act 1999 (NSW) (BCISOPA). Words imparting the singular include the plural and vice versa. A reference to the male gender includes the female and a reference to a person includes a partnership and a company.
A reference to any party includes that party’s executors, administrators, successors and permitted assigns.
GST means Goods & Services Tax a tax levied by the Federal Government on the supply of goods and services.
Site means the location(s) where the Goods are to be used and or where the works (Works) are to be constructed as described in Schedule Item 6.
Works means works provided pursuant to this contract.
Others mean all other contractors (or suppliers or service providers) at or associated with the Site or project, statutory authorities, (save AC subcontractors.)
2. PROVISION OF GOODS AND/OR SERVICES
2.1 AC agrees to provide the goods (the Goods) and / or services (the Services) described in Item 6 of the Schedule to the Principal and the Principal agrees to pay the Fee and to be bound by the terms and conditions of this Agreement. The description in Item 6 and any documents referred to therein (including agreed variations thereof) form part of this contract.
2.2 Any variation to the Description of the Goods and or Services (Scope of Works)(Schedule Item 6) shall be performed by AC in accordance with the terms of service and schedule of rates pursuant to section A above, and shall not require owner, builder or site supervisor confirmation.
2.3 All plans and specifications to be done under the contract (including variations) are taken to form part of the contract.
2.4 If your asset is affected no plans will be released until the following has been addressed (as applicable):
a. pay for pier inspection;
b. pay for concrete inspection;
c. pay for quick check Sydney Water tap in fee.
2.5 The Goods and or Services (Scope of Works)(Schedule Item 6) will comply with:
i) the Building Code of Australia, to the extent required under the Environmental Planning and Assessment Act 1979; ii) all other relevant codes, standards and specifications that the work is required to comply with under any law; and iii) the conditions of any relevant development consent or complying development certificate.
2.6 The liability of AC is limited to $1 for failure to comply with the above work compliance clause 2.4 if the failure relates solely to: i) a design or specification prepared by or on the Principal’s behalf; or ii) a design or specification required by the Principal if AC has advised the Principal in writing that it contravenes the clause referred to immediately above (clause 2.4).
2.7 The Principal shall inspect the Goods on delivery or Works on installation and shall within thirty (30) days of delivery or installation notify AC of any alleged defect, shortcoming in quality, damage or failure to comply with the Schedule Item 6 Description of the Works. The Principal shall provide AC with an opportunity to inspect the Goods and installation (or Works) within a reasonable time (and not exceeding 30 days) following delivery. If the Principal fails to comply with these provisions the Goods or Works shall be conclusively presumed to be in accordance with the Principal’s requirements and free from defect or damage.
2.8 For defective Goods, which the AC has agreed in writing that the Principal is entitled to reject, and provided that the Principal has complied with the provision of Clause 2.6 AC’s liability is limited to either (at AC’s discretion) replacing the Goods or reducing the Fee by the amount recovered from the AC’s suppliers for said rejected Goods. AC is not liable for Goods which have not been stored or used by the Principal in a proper manner.
2.9 For the abundance of clarity, any liability of AC’s in relation to defective works as detailed in clauses 2.6 and 2.7, applies only to the Goods and Works the direct subject of this contract. AC are not liable, and cannot reasonably be held liable for any works undertaken by Others (other contractors at or in any way associated with the site including for any road works, trenching works and the like) or for works or defects caused by the Principal.
3.1 The Contractor will make his best endeavours to:
3.1.1 commence the Services by the Commencement Date specified in Item 4 of the Schedule and complete the Services by the Completion Date specified in Item 5 of the Schedule; and/or
3.1.2 Deliver the Goods by the Delivery Date specified in Item 6 of the Schedule.
3.2 The Completion Date or Delivery Date may only be extended by written agreement between the parties.
4.1 The fee for the Goods and/or Services is set out in Item 6 of the Schedule (Fee).
4.2 The Fee will be payable by the Principal in the manner described in Item 3 of the Schedule.
4.3 If the description of the Goods or Services (scope of works) is varied in accordance with this contract, the Fee will be amended: (i) by the amount agreed between the parties; or (ii) failing agreement, by an amount reasonably determined by AC.
4.4 If The Buyer does not submit a Site Survey Plan, then The Buyer takes full responsibility if measurements taken from fence-lines to sewer lines are not accurate. If additonal works are required The Buyer will be charged at AC casual rate of $99.00 per hour (Inc GST).
5. RISK IN THE GOODS
AC bears the risk in the Goods until Delivered to the Principal. Title in the Goods will pass to the Principal when both the requirements of clause 6.3 (i) and (ii) are met.
6. DELIVERY OF GOODS
6.1 The Buyer shall take delivery of the Goods tendered notwithstanding the quantity may be greater or lesser than 5% different to the quantity ordered by the Buyer. In these circumstances, the Price will be adjusted at the contract rate.
6.2 Delivery of the Goods shall be made to the Principal’s address or such address nominated by the Principal prior to contract. The failure of AC to deliver the Goods shall not entitle either party to treat this contract as repudiated or for AC to be liable for any loss or damage.
6.3 Property in the Goods shall not pass until: i) The Principal has paid all amounts owing for the particular Goods; ii) The Principal has met all other obligations due by the Principal to AC under this contract; and iii) The Goods, shall be kept separate and labelled as “owned by Aoun Constructions” until AC has received all amounts owing for and all obligations due by the Principal to AC and any other such other obligations of the Principal are met.
6.4 If any of the Goods are damaged or destroyed prior to property in them passing to the Principal, AC is none the less entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions, to payment of the Price in full.
Aoun Construction’s Lien & Stoppage in Transit
6.5 Where AC has not received or been tendered the whole of the Price, or the payment has been dishonoured AC shall have: i) A lien on over the Goods ii) the right to maintain them for the Price while AC is in possession of them: iii) a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and iv) a right of resale; v) the foregoing right of disposal.
Unpaid Seller’s (AC’s) right to dispose of Goods
6.6 In the event that: i) AC retains possession or control of the Goods; and ii) payment of the Price is due AC; and iii) AC has not received the Fee for the Goods, then whether the property in the Goods has passed to the Principal or has remained with AC, AC may dispose of the Goods and claim from the Principal the loss to AC on such disposal as a debt immediately due and payable.
6.7 It is further agreed that: i) The Principal shall not deal with the money of AC in any way which may be adverse to AC. ii) Until such time as ownership of the Goods shall passes from AC to the Principal AC may give notice in writing to the Principal to return the Goods or any of them to AC. Upon such notice the rights of the Principal to obtain ownership or any other interest in the Goods shall cease. iii) If the Principal fails to return the Goods to AC (or its agent), AC (or its agent) may enter upon and into the land and premises owned, occupied or used by the Principal, or any premises as the invitee of the Principal, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused. iv) The Principal shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of AC. v) AC can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Principal.
7. GOODS AND SERVICES TAX
7.1 The Fee for the Goods and/or Services under this Agreement is inclusive of GST.
7.2 The AC represents that it is registered under the A New Tax System (Australian Business Number) Act and that its ABN is that shown in Item 1 of the Schedule.
8. TERMINATION BY THE PRINCIPAL
8.1 It is a condition precedent to the Principal being entitled to terminate this Agreement that the Principal issue a show cause notice to AC advising of alleged justification for termination, granting 7 days opportunity for AC to rectify alleged breach and seeking reasons as to why it should not, after 7 business days of receipt of notice, terminate this Agreement.
9.1 AC will effect and maintain a policy of insurance covering public liability, and/or product liability and/or professional indemnity as specified in Item 8 of the Schedule.
9.2 AC will ensure that any requirements in relation to Workers Compensation legislation are complied within respect to any employees, subcontractors or other persons engaged by it in relation to this Agreement.
10.1 AC hereby indemnifies and undertakes to keep indemnified the Principal and its employees from and against all costs, losses, damages, expenses or other liabilities suffered or incurred by the Principal or its employees arising out of or in respect of this Agreement arising out of or in respect of:
10.1.1 any wilful reckless negligence or recklessly wrongful act or omission by AC and does not include any delay damages nor liquidated damages that the Principal may incur as against its head contract, the risk of which AC does not cover, nor indemnify the Principal for.
10.2 The Principal hereby indemnifies and undertakes to keep indemnified AC, it agents, directors and its employees from and against all costs, losses, damages, expenses or other liabilities suffered or incurred by AC or its agents, directors and its employees arising out of or in respect of this Agreement arising out of or in respect of:
10.2.1 Any breach of contract or wilful reckless negligence or recklessly wrongful act or omission by the Principal, its agent’s or servant’s
10.3 This clause will survive the termination of this Agreement.
11. TERMINATION BY AC
11.1 AC may terminate this Agreement immediately upon giving notice in writing to the Principal if:
11.1.1 AC reasonably forms the opinion that the Principal will be unable to perform its obligations pursuant to this Agreement (including if the Principal fails a credit check or if payment or purported payment of the Principal is stopped in any way); or
11.1.2 The Principal is in substantial breach of this Agreement and has not rectified such breach within seven (7) days of AC giving notice in writing to the Principal requiring the Principal to show cause as to why AC should not terminate this Agreement. (Failure of the Principal to allow free and uninterruptable access to the Site within 3 Business days of the Commencement Date is deemed to fall within the definition of a substantial breach); or
11.1.3 Save the circumstance set out in clause 11.3, the Principal suffers or, in the reasonable opinion of AC, is in jeopardy of becoming subject to any form of Insolvency Administration; .
11.3 Any termination of this Agreement by AC is without prejudice to any rights, remedies or actions AC may have against the Principal which may have arisen prior to the date of termination.
11.4 If AC terminates this Agreement it may remove the Goods and Services or any Works or Services installed (save those paid for by the Principal) and performed by the AC prior to the Principal receiving Aoun Construction’s notice.
11.5 For the purposes of this clause “Insolvency Administration” means:
11.5.1 An administrator is appointed to the Principal or action is taken to make such an appointment;
11.5.2 The Principal resolves to be wound up;
11.5.3 An application is made to a court for an order or an order is made that the Principal be wound up (whether on grounds of insolvency or otherwise);
11.5.4 The Principal ceases to carry on business;
11.5.5 a receiver or a receiver and manager of property of the Principal is appointed
Whether by a court or otherwise;
11.5.6 An application is made to a court for an order appointing a liquidator or provisional liquidator in respect of the Principal or one of them is appointed, whether or not under an order;
11.5.7 The Principal enters into a compromise or arrangement with its creditors or a class of them;
11.5.8 The Principal is or states that it is unable to pay its debts when they fall due;
11.5.9 The Principal has committed an act of bankruptcy as contemplated by the Bankruptcy Act 1966 (Cth);
11.5.10 the Principal is unable to pay his or her debts as and when they become due and payable;
11.5.11 the court has made a sequestration order against the Principal’s estate;
11.5.12 a creditors’ petition has been presented against the Principal;
11.5.13 the Principal has presented to the Official Receiver a declaration of intention to present a debtor’s petition;
11.5.14 the Principal becomes a bankrupt;
11.5.15 a meeting of creditors of the Principal is convened; or
11.5.16 the Principal lodges with his or her trustee a proposal to his or her creditors for a composition in satisfaction of his or her debts or a scheme of arrangement of his or her affairs.
12. ENTIRE AGREEMENT
12.1 This Agreement (which includes the attached quotation and drawings) constitutes the entire agreement of the parties in respect of the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations in respect of this subject matter.
12.2 No amendment or modification of, nor addition, to the conditions of this Agreement will be binding upon the parties unless it is in writing and signed by the parties.
12.3 The Principal acknowledges that it has placed no reliance upon any representation made by AC (or its servants or agents) whether made to the Principal directly or to any third party.
12.4 Any provision of these terms and conditions that are invalid, void or illegal or unenforceable: i) are ineffective only to the extent of the invalidity, voidness, illegality or unenforceability; and ii) do not make the remaining provisions ineffective.
12.5 These terms and conditions may only be rescinded or waived with the written consent of both parties.
12.6 The Principal acknowledges and agrees that none of Aoun Construction’s agents or representatives are authorised to make any representations or statements, conditions or agreements not expressed by the director of AC in writing nor is AC bound by such statements save those provided by the director of AC.
12.7 The Principal acknowledges that it has been granted the opportunity to negotiate and seek amendments to this Agreement.
12.8 No principal of interpretation shall operate on any provision of this contract to the disadvantage of a party on the basis that the party drafted the provision.
13. GOVERNING LAW
The law of this Agreement is the law applicable in the State of New South Wales, Australia and the parties submit themselves to the exclusive jurisdiction of the Courts having jurisdiction in that State.
14. NO ASSIGNMENT BY PRINCIPAL
The Principal must not assign or encumber any of its rights under this Agreement. AC may assign, licence or sub-contract all or any part of its rights and obligations without the Principal’s consent.
15. TIME OF THE ESSENCE
Time is of the essence in respect of time for payment or in any notice served under this Agreement only.
16. DISPUTE RESOLUTION
If there is any dispute or difference between the parties in relation to any matter relating to this contract, each party shall use its best endeavours to resolve the dispute through dialogue (including providing a written description of the matter disputed) for not less than 14 days prior to commencing proceedings in any court or tribunal.
17. CHARGE ON THE SITE
17.1 The Principal charges the Site with due payment to AC of all moneys that are or may become payable under this contract to the extent that a court or tribunal has made an order that the Principal pays that amount to AC.
17.2 The Principal consents and agrees to execute any document required for:
(i) Aoun to register the charge over the Site; and
(ii) Aoun to lodging a caveat to protect the charge.
18. HOME BUILDING ACT WARRANTIES
The following warranties are included in this contract to the extent required by the Home Building Act 1989 (NSW) and to the extent that they logically apply to the Item 7 Description and Details of Goods and Services (Scope of Works) in accordance with section 18B of the Home Building Act:
18.1 a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out herein,
18.2 A warranty that all materials supplied by AC will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,
18.3 a warranty that the work will be done in accordance with, and will comply with, this (s18B Home Building Act) or any other law,
18.4 a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,
18.5 a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,
18.6 a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder’s or person’s skill and judgment.
18.7 Further to the above, AC acknowledges the Consumer Guarantees to the extent mandated by the New Australian Consumer Law to the extent that they apply to the Item 6 description of the Goods and Services provided under this Agreement.
18.8 If a Sewer Pegout is ordered before site survey and AC has no reframe points to reference AC hold no responsibility for incorrect Pegout Location.
18.9 AC will only reference to existing fence line unless provided with survey plan prior.
19. DEFAULT IN PAYMENT BY PRINCIPAL
19.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment a rate of 2% per calendar month and shall accrue at such rate after as well as before any judgment.
19.2 If the Principal defaults in payment of any invoice when due, the Principal shall indemnify AC from and against all AC’s costs and disbursements on a full indemnity basis.
19.3 Without prejudice to any other remedies AC may have, if at any time the Principal is in breach of any obligation (including those relating to payment) AC may suspend or terminate the supply of Goods or Services to the Principal and any of its other obligations under this Agreement. AC will not be liable to the Principal for any loss or damage the Principal suffers because AC exercised its rights under this Clause 19.
Further Circumstances Giving AC the Right to Suspend Supply of Goods or Works
19.4 If the Principal:
(i) fails to provide satisfactory evidence of title to the Site and/or capacity to pay the contract price, including any variations;
(ii) fails to pay a progress payment or any other amount due to the contractor within the time allowed, but only if the owner fails to pay the progress payment or other amount due after a written notice from the contractor requiring payment within a further period of 2 business days;
(iii) fails to advise the contractor promptly of any requirement of or notice from a statutory authority or the lending authority, if any, that affects the work;
(iv) fails to perform any work or supply materials as specified in Item 3 (Description / Scope of Works) which prevents the contractor from continuing with the work under the contract;
(v) denies AC (or its agents or subcontractor(s) access to the site so as to prevent the work from proceeding, or otherwise prevents the contractor from carrying on the work; or if the Principal becomes bankrupt, assigns assets for the benefit of creditors generally, makes a composition or other arrangement with creditors or, if the Principal is a company, goes into liquidation or receivership or is otherwise without full capacity; AC may, without prejudice to any other rights under the contract, immediately suspend the work by giving written notice to the Principal identifying this clause 19 and specifying the reason. If the Principal remedies the default, AC will make its best endeavours to recommence the work within 10 business days, where practicable to do so in the particular circumstances, unless the contractor has terminated the contract.
20. FORCE MAJUER
20.1 Neither party shall be liable for any default due to any act of god, war, strike or industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
21. NOTICES and Variations
If the contract requires or permits a party to give a notice, consent, or other communication in writing to the other party, it must be given by either:
21.1 handing it to the other party; or
21.2 leaving it with a person, apparently over the age of 16, at the other party’s business or Residential address; or
21.3 By registered post to the last known address of the other party; or
21.4 By facsimile transmission to the facsimile number provided in the Schedule (or Header) Of this contract.
21.5 If a variation is raised this will be issued with notice of variation which will be sent to head office of principle contractor.
22. CREDIT CHECK, PRIVACY AND CREDIT CARD PAYMENT
Privacy Act 1988 and Credit Information
22.1 The Principal agrees and consents to AC obtaining from a credit reporting agency a credit report containing personal credit information about the Principal in relation to credit provided by AC.
22.2 The Principal agrees and consents to AC exchanging information about the Principal with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes: i) To assess an application by the Principal; ii) to notify other credit providers of a default by the Principal; iii) To exchange information with other credit providers as to the status of the Principal’s credit account, where the Principal is in default with other credit providers; and iv) To assess the credit worthiness of the Principal.
22.3 The Principal consents to AC being given a consumer credit report to collect overdue payment on commercial credit (Section 18k (l) (h) Privacy Act 1988).
22.4 The Principal agrees that Personal Data provided may be used and retained by AC for the following purposes and for other purposes as shall be agreed between the Principal and AC or required by law from time to time: i) provision of Service or Goods; ii) Marketing of Services and or Goods by AC, its agents or distributors in relation to the Service and Goods; iii) Analysing, verifying and/or checking the Principal’s credit, payment and or status in relation to provisions and Services and Goods; iv) processing and payment instructions, direct debt facilities and/or credit facilities requested by the Principal (whether expressly or impliedly) in relation to the Services and Goods.
Credit Card Payment by Principal
22.5 The Principal agrees to pay AC the Deposit Amount (or other payment amount as documented in Schedule Item 3 (for example for Mobilisation Amount, or for Works to Date Amount)).
22.6 The Principal authorises AC to complete any documents necessary or desirable to enable AC to make any payments described in clause through any credit card system.
22.7 In the event that the Principal does not proceed with the Works, AC shall retain 50% of all payments and pre-payments made by Principal to offset business and website expenses, and shall return 50% of payments made to the Principal, subject to Clause 22.8.
22.8 For sewer pegouts or plan stamping works the Principal agress that AC shall retain $500 of any payments and pre-payments made by Principal to cover AC operational costs.