Terms & Conditions

1. Parties

1.1. This agreement is made between:

1.1.1. Clark Electrical & Air Conditioning (ABN 11 641 881 987, Licence #19957304), referred to in this document as “we”, “us” or “the Company”; and

1.1.2. The Owner named in the Order, being the person or persons ordering the Works and/or Services and referred to in this document as “you” or otherwise the “Owner”.

1.2. This agreement consists of:

1.2.1. the Company’s Terms referred to in this document as the “Terms”, being the terms set out in this agreement; the Order or Quote;

1.2.2. the terms set out in Schedule A (if applicable);

1.2.3. the schedule of Rates as set out in Schedule B and which may be updated from time to time at the sole discretion of the Company (if applicable); and

1.2.4. any drawings, specifications and Special Conditions that may be applicable from time to time.

2. Acceptance and Basis of Contract

2.1. The Owner agrees to be legally bound to the Terms when the Owner accepts the offer that the Company makes to the Owner in an Order or Quote.

2.2. The Owner will be bound to these terms when the Owner accepts the Quote (which is valid for thirty (30) days only) or accepts delivery of any Works, whether in writing by execution or by verbal acceptance, at which point a Contract for that specific Quote shall come into existence.

2.3. Any legal entity or person signing this agreement on behalf of the Owner hereby covenants that he or she has the authority and requisite capacity to sign on behalf of and bind the Owner to these conditions, and that this agreement creates binding and valid legal obligations on them.

2.4. In the event of any inconsistency between the terms and conditions on a Quote and any other prior document or schedule that the parties have entered into, these Terms shall prevail.

3. Definitions

The following definitions apply to this agreement:

3.1. “Act” means the Building and Construction Industry (Security of Payment) Act 2009 (ACT) and relevant Regulations.

3.2. “Contract” means the contract between the Company and the Owner for the Works, consisting of any relevant Orders, Quotes and these Terms.

3.3. “Event of Default” means any of the following on the part of the Owner:

3.3.1. committing any material or persistent breach of this agreement;

3.3.2. repudiating or, in the reasonable opinion of the Company, demonstrating an intention to repudiate this agreement;

3.3.3. in the reasonable opinion of the Company, the Owner or any individual on the Owner’s Site has threatened, bullied or placed the Company or any of the Company’s employees, contractors or staff in a dangerous position, whether by way of an act or omission;

3.3.4. the Owner’s financial position deteriorating to such an extent that in the Company’s reasonable opinion, the Owner’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

3.3.5. the Owner undergoing a change of control without the prior written consent of the Company;

3.3.6. misleading the Company in any material way; and/or

3.3.7. an Insolvency Event occurring in respect of the Owner.

3.4. “Force Majeure Events” includes, but is not limited to, acts of God, war, terrorism, pandemics, government regulations, labour disputes, material shortages or other events beyond the reasonable control of the parties.

3.5. “Insolvency Event” means:

3.5.1. where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under bankruptcy or insolvency law;

3.5.2. where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;

3.5.3. a receiver or manager is appointed to the assets or undertaking of the party or any part thereof; or

3.5.4. the party is otherwise unable to pay its debts as and when they fall due.

3.6. “GST” has the same meaning given to that expression in A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

3.7. “Practical Completion” is when the Works are substantially complete and any incomplete work or unrectified defects are of a minor nature, such that completion or rectification will not unreasonably affect the ability of the Owner to use or occupy the structure and Site.

3.8. “Progress Payments” means and includes a payment claim under the Building and Construction Industry (Security of Payment) Act 2009 (ACT).

3.9. “Price” means the price quoted in an Order or Quote or otherwise as set out in accordance with these Terms.

3.10. “Quote” means a statement of contract details, detailing the specific terms of a Contract with the Owner for the purchase of Works by the Company, which these Terms apply to and which are either attached, or as per the Quote generated by the Company through its ordering system or otherwise in the form of an invoice.

3.11. “Service” includes but is not limited to diagnosing, testing, installing, maintaining, servicing or repairing electrical wiring, switchboards, safety switches, lighting, ceiling fans, smoke alarms, data cabling, EV chargers, air conditioning systems, and carrying out general electrical services and Works supplied for the Owner at the Owner’s request from time to time.

3.12. “Site” means the place or address the Owner provides to the Company as specified in the Quote as the designated place, premises or location at which the Works and/or Services are being provided by the Company to the Owner, and where a site inspection may be carried out by the Company and/or its employees, agents or contractors.

3.13. “Works” includes any tangible items, plant equipment, Services, goods, products or materials required to undertake the Services or incidental to the Services, including those goods described in an Order or Quote, together with temporary work and any applicable Variations.

3.14. “Variation” is a change to the Work or the method of carrying out the Work including removing some of the Work. A Variation will often involve a change to the Price.

4. Cooling Off Period

For works valued at AUD $12,000 or more:

4.1. The Owner may terminate this contract (subject to clause 4.2) within five (5) clear business days following the later of:

4.1.1. receipt from the Company of a signed copy of this agreement or relevant Quote; or

4.1.2. receipt from the Company of a copy of the appropriate contract information sheet.

4.2. To terminate this agreement in accordance with this clause, the Owner must complete a withdrawal notice within the timeframe specified in clause 4.1 above and:

4.2.1. provide it to the Company; or

4.2.2. leave it at the Company’s address listed in this agreement; or

4.2.3. serve it on the Company in accordance with any provision in the contract providing for delivery of notices on the Company by the Owner.

4.3. Where more than one Owner has entered into this agreement, the Owners shall be jointly and severally liable for all payments in respect of any materials already supplied or any Works or other Services performed by the Company under the Contract.

5. Owner Warranties

The Owner warrants to the Company that it will:

5.1. provide evidence before commencement of the Works that the Price can be paid, if requested by the Company;

5.2. provide proof of ownership of the Site on which the Work is to be carried out or otherwise that the Owner has obtained a licence, lease or right to access the Site with the express consent of the landowner;

5.3. provide true, accurate and clear instructions about the Works required and, failing that, agree to and accept the Company’s supply of standard Works;

5.4. provide safe access to the Site before or during the Work to conduct any assessment or inspection of the Site necessary to determine an accurate Quote for the Work;

5.5. promptly and fully inform the Company about all matters that are likely to affect the performance of the Works or the Owner’s obligations under the Agreement;

5.6. supply electricity, power, temporary lighting and toilet facilities to the Company, where required and at the Owner’s cost;

5.7. use all reasonable endeavours to provide the Company with assistance where it is required for the Company to undertake and perform the Works;

5.8. ensure that the Company is able to perform the Works without unreasonable interference; and

5.9. where the Owner is a business or company, the Owner shall give the Company not less than five (5) business days’ prior written notice of any proposed change of ownership of the Owner and/or any other change in the Owner’s details (including but not limited to changes in the Owner’s name, address, contact phone numbers, email addresses, ABN or business practice).

6. Provider Warranties

The Company warrants that it will:

6.1. carry out the Work in accordance with the Contract and the Contract documents in a proper and workmanlike manner, using suitable materials;

6.2. ensure that the Work is carried out safely and is properly supervised (if required);

6.3. comply with the provisions of all relevant statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including but not limited to the Electricity Safety Act 1971 (ACT), the Electricity Safety Regulation 2004 (ACT), the Construction Occupations (Licensing) Act 2004 (ACT), applicable work health and safety (WHS) laws, and the AS/NZS 3000 Wiring Rules; and

6.4. ensure that any claims under contractual warranties under these Terms, the Australian Consumer Law and statutory implied guarantees and warranties are addressed by way of repairs, funds or replacements within a reasonable time frame.

7. Provision of the Works

Materials

7.1. All materials removed by the Company in the course of the Work become the property of the Owner and are to be cleared from the Site, unless stated otherwise on the relevant Quote or Order.

7.2. The Owner accepts that machinery and tools used by the Company in the undertaking of Services may generate dust, debris or noise. The Company recommends that any property or equipment belonging to the Owner in the immediate work area is covered or relocated.

7.3. The Owner acknowledges that the Company will make all reasonable efforts to clean a work area, however the Owner accepts that the Company may not remove all dust, debris or other residue. The Company does not accept liability for such removal.

7.4. If agreed in writing with the Company, the Owner may supply materials, goods or equipment to be included in the Work. Should the Owner supply its own materials, goods or equipment for the Works, the Company shall not be responsible for the quality of such materials or their suitability for the Works.

7.5. If the Company considers the Owner’s materials, goods or equipment to be unsuitable, the Company must notify the Owner in writing of the reasons and request a direction.

7.6. If the Owner still wishes the unsuitable materials, goods or equipment to be used, the Company must use them in the Work unless the Company reasonably believes that doing so would put the health or safety of any person at risk or would result in non-compliance with the Electricity Safety Act 1971 (ACT) or AS/NZS 3000.

7.7. If the Company uses unsuitable materials, goods or equipment in the Work at the Owner’s direction, the Owner takes all responsibility for any delays, defects or additional costs as a result. Any warranties provided by the Company may be adversely affected by the use of unsuitable materials, goods or equipment.

7.8. If the Owner fails to supply materials, goods or equipment by the time the Company needs them, the Company may obtain similar materials, goods or equipment for use in the Work.

7.9. The extra cost to the Company of supplying similar materials, goods or equipment will be a Variation to the Contract.

7.10. Except where the contract documents call for or require the use of specific materials, the Company shall use materials that reasonably match those materials, wherever possible.

7.11. All materials supplied by the Company in the Work will remain the property of the Company until the Owner pays for that part of the Work.

Concealed Services and Access

7.12. In relation to any concealed wiring, cables or services (including but not limited to wiring within walls, ceilings, under floors, or in roof cavities), the Company may be required to open access points and the Owner accepts that some making good of surfaces may be necessary at the Owner’s cost.

7.13. Prior to Work commencing, the Owner must advise the Company of the precise location of any known concealed services. These include, but are not limited to, gas pipes, water mains, sewer connections, data cabling, fibre optic cables, irrigation pipes and any other services that may be present at the Site.

7.14. Whilst the Company will take all reasonable care to avoid damage to any concealed services, the Owner accepts and agrees to indemnify the Company in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses in this agreement.

Roof and Ceiling Access

7.15. The Owner agrees to indemnify the Company from and against all claims, loss and damage suffered by it as a result of or in connection with any damage to the rooftop, ceiling cavity or ceiling lining of the premises on the Site caused in the course of the Company’s provision of Works, except to the extent that such damage has arisen out of the gross negligence of the Company.

7.16. The Owner shall be responsible for replacing or repairing any roof or ceiling materials at their own expense unless otherwise agreed in writing.

7.17. Notwithstanding the above, the Company may provide the Owner with a quotation for such repair works at its discretion. Any such repair works provided by the Company will be of a temporary nature unless stated otherwise.

Certificates of Electrical Safety

7.18. Where required under the Electricity Safety Act 1971 (ACT), the Company will submit a Certificate of Electrical Safety (CES) to Access Canberra within fourteen (14) days of completion of the relevant electrical work. A copy of the CES will be provided to the Owner.

7.19. The Owner acknowledges that Access Canberra may conduct audit inspections of submitted Certificates of Electrical Safety and may contact the Owner for access to the Site for such purposes.

8. Price and Payment

Quotes

8.1. The Company provides free quotes to the Owner. A licensed electrician will attend the Site to assess the required Works and provide the Owner with a fixed-price Quote at no charge.

8.2. Quotes are valid for thirty (30) days from the date of issue unless otherwise stated.

Deposits for Domestic Works

8.3. If the Price is under $12,000.00 (minor domestic work), a deposit of twenty percent (20%) of the total Price or the cost of the materials (whichever is the greater) must be paid on or before the Commencement Date.

8.4. If the Price is between $12,001.00 and $20,000.00, a deposit of $1,000.00 must be paid from the Owner to the Company on or before the Commencement Date.

8.5. If the Price exceeds $20,000.00, the Owner must pay a deposit of five percent (5.00%) of the total Price on or before the Commencement Date.

Lump Sum Payment

8.6. If the Price is payable in a lump sum, the Owner will pay it as indicated on invoices or Orders provided by the Company to the Owner in respect of the Works performed or goods provided.

Progress Payments and Payment Claims

8.7. If the Price is payable by progress payments, the Owner agrees to pay it in the manner set out in Schedule A.

8.8. The Company is entitled to progress payments from the Owner pursuant to the Act.

8.9. The Company is entitled to issue payment claims to the Owner pursuant to the Act.

Failure to Pay

8.10. If the Owner does not pay a Progress Payment or Payment Claim, the Company reserves the right to:

8.10.1. charge interest at the rate of simple interest of ten percent (10%) per annum in accordance with this agreement;

8.10.2. halt any further work until such time as the outstanding payment is forthcoming without incurring any penalty;

8.10.3. exercise a lien over unfixed plant and materials supplied by the Owner;

8.10.4. recover the unpaid portion of a claimed amount as a debt due in Court;

8.10.5. make an adjudication application pursuant to the Act; or

8.10.6. serve notice on the Owner of the Company’s intention to suspend carrying out Works and supplying its Services.

8.11. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Act.

8.12. The Owner’s obligation to pay the Company pursuant to the Act survives termination or cancellation of this Agreement.

8.13. The Owner accepts that email is a valid format to receive any documents under the Act, including but not limited to Payment Claims, Progress Payment claims, an application for adjudication, and mandatory notices.

Interest

8.14. The Owner will be charged interest on money not paid on time at the rate agreed pursuant to Schedule A.

8.15. Progress payments are calculated according to the Company’s terms and conditions including but not limited to quotes, variations, proposals and/or invoices.

General Price

8.16. The Price shall otherwise be the amount indicated on the Quote or Invoice.

8.17. The Company will invoice the Owner following the delivery of each Quote, with such invoice clearly referencing the Quote, the commencement date of the Contract, the relevant payment terms and any other relevant documents that the Owner may reasonably require.

Payment

8.18. Unless otherwise stated in Schedule A or agreed to between the parties in writing, payment must be made upon completion of the Works at each stage of the Works upon being properly invoiced.

8.19. Payment to the Company must only be made either by cash on the day, electronic/online banking or credit card (plus any relevant surcharges) or by any other method as agreed to between the Owner and the Company.

8.20. Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Company’s rights and ownership in relation to the Work and Services, and this agreement, shall continue.

8.21. Unless expressly stated otherwise, any sum payable under this agreement has been determined without regard to GST, in which case GST will be payable under this clause.

9. Delivery

9.1. Service is taken to have occurred at the time that:

9.1.1. the Company (or their nominated carrier) delivers the goods or completes the Services to the Owner’s nominated address, even if the Owner is not present at the address;

9.1.2. the Company undertakes and completes the Works at the Owner’s nominated address, either in full or in part over one or more days, even if the Owner is not present; or

9.1.3. any other method of service occurring, as agreed in writing by the parties to this agreement.

9.2. The normal business hours of the Company for the delivery of Works is between the hours of Monday to Friday, 7:30am to 4:00pm, or a time as instructed by the Company (“Business Hours”).

9.3. In the event that the Owner is unable to receive the Works, or the Company is unable to carry out the Works as arranged (for any reason whatsoever including, but not limited to, inability to access the Site due to obstruction, change of Owner instructions, cancellations, rescheduling, or the Company having been provided with incorrect information and being unable to commence the Work), then the Company shall be entitled to charge a reasonable fee for reattendance, mobilisation, restocking of goods or equipment and/or storage of goods or equipment in accordance with its Schedule of Rates.

9.4. The Company may undertake the Works in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of this agreement.

10. Practical Completion

10.1. When, in the reasonable opinion of the Company, Practical Completion of the Work has been achieved, the Company must notify the Owner in writing.

10.2. Unless the Owner has signed off and approved Practical Completion of the Works on-site with the Company, the Owner must inspect the Work with the Company within five (5) days of the Company’s written notification. If the Owner does not agree that the Work has achieved Practical Completion, the Owner must notify the Company in writing of the reasons, including by providing details of any defective or incomplete Work.

10.3. The Company must assess any items identified by the Owner and take any action that the Company considers to be reasonably necessary to bring the Work to Practical Completion.

10.4. The Work is the responsibility of the Owner from the Date of Practical Completion or from the date that the Owner takes over the Work, whichever is earlier.

10.5. If the Owner takes possession, uses part of the Work without the written consent of the Company, or if the Works have been interfered with or tampered with by a third party, the Work shall be deemed to have reached Practical Completion on the date possession is taken or interference occurs.

11. Risk and Title

11.1. Risk of damage to or loss of the Works will not pass to the Owner until Delivery.

11.2. If any of the Works are damaged or destroyed following Delivery but prior to ownership passing to the Owner, the Company is entitled to receive all insurance proceeds payable for the Works.

11.3. Any advice, recommendation, information or assistance provided by the Company in relation to incidental goods or services supplied is provided in good faith based on the Company’s own knowledge and experience and shall be accepted without liability on the part of the Company. It shall be the responsibility of the Owner to confirm the accuracy and reliability of the same.

11.4. Title shall pass from the Company to the Owner upon its confirmation of Delivery of the Works, but is subject to:

11.4.1. the Owner paying the Company all amounts owing and the same being honoured, cleared or recognised by the Company; and

11.4.2. the Owner meeting all other obligations due by the Owner to the Company in respect of all contracts between the Company and Owner.

12. Defects Liability Period

12.1. The Defects Liability Period begins on the date of Practical Completion and continues for the duration set out in Schedule A.

12.2. During the Defects Liability Period, if the Owner believes the Work is defective, the Owner may require the Company to rectify defects provided the Owner first:

12.2.1. provides written notice to the Company at the address listed on the Contract within no later than ten (10) business days of becoming aware of the alleged defect;

12.2.2. permits the Company reasonable access to the premises to investigate and if applicable, repair the alleged defects; and

12.2.3. provides the Company with reasonable time to investigate and determine whether the matters notified are defects.

12.3. To the extent reasonably possible, the Company will fix defects within thirty (30) days of completing the investigation or in the timeframe as agreed between the Parties, subject to the availability of material and equipment and any relevant public holidays.

12.4. If the Company does not fix the defects, upon the Owner first giving the Company in writing a further reasonable opportunity to do so, the Owner may arrange for the defects to be rectified and the Company will pay the reasonable costs of doing so.

12.5. The Company will not be liable to the Owner in any manner regarding any breach, failure, defect or claim which has not occurred and been notified to the Company before the expiration of the Defects Liability Period.

12.6. The Company expressly excludes all liability in relation to:

12.6.1. damage to rooftops, ceiling cavities and ceiling linings at the Site; and

12.6.2. all goods that have expired in respect of any third-party product warranty or manufacturer’s warranty.

12.7. Warranties given by suppliers of materials and products used in the Work are given by the supplier of those materials and products and any claims for defective materials and products must be made directly to the applicable supplier.

12.8. Any work carried out by other trades or persons other than the Company or the Company’s approved trades are void to the fullest extent permitted by law against any warranty provided by the Company.

12.9. Under applicable State, Territory and Commonwealth Law (including the Competition and Consumer Act 2010 (Cth)), certain statutory implied guarantees and warranties may be implied into these terms and conditions (“Non-Excluded Guarantees”).

12.10. Nothing in this clause is intended to detract from the Owner’s statutory rights nor purports to modify or exclude the Non-Excluded Guarantees.

13. Variations

13.1. If, and to the extent that the Company discovers after acceptance of the Quote, circumstances that were not readily apparent from the information provided by the Owner or any other matters that may impact on the performance of the Works, the Owner agrees that the Company will be entitled to revise the Quote and/or address matters it reasonably requires to complete the Works at the Owner’s expense.

13.2. The Company will notify the Owner if any Variation to the Quote is required and will not commence additional work without the Owner’s express written authority.

13.3. If the Owner does not wish to address the circumstances identified, or the Company determines that such circumstances cannot be rectified to its satisfaction, then the Company may terminate this agreement with seven (7) days’ written notice to the Owner.

Price Variations

13.4. The Company reserves the right to change the Price if a Variation to the Quote is requested in writing by the Owner. Variations will be charged for based on the Quote and detailed in writing.

13.5. The Owner shall be required to respond to any Variation submitted by the Company within seven (7) days.

13.6. Failure of the Owner to respond to any Variation submitted by the Company within seven (7) days will be deemed an acceptance of the Variation and shall entitle the Company to add the cost of the Variation to the Price.

14. Security and Charge

14.1. The Owner charges all of its rights, title and interest (whether joint or several) in the Works (and their proceeds) and grants a security interest in all of its present and after-acquired property for the purposes of securing the performance by the Owner of its obligations under these terms and conditions.

14.2. The Owner indemnifies the Company from and against all the Company’s costs and disbursements including legal costs incurred in exercising the Company’s rights under this clause.

Personal Property Securities Act 2009 (“PPSA”)

14.3. The Owner consents to registration of the security interests arising in favour of the Company if necessary as a result of these conditions and lodgement of a financing statement in respect of the security interests with the Personal Property Securities Register.

15. Indemnity

15.1. The parties shall have personal liability for, and hereby irrevocably indemnify and covenant to hold one another harmless from and against, any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs on a full indemnity basis) suffered by the other party as a result of or in connection with:

15.1.1. any breach of this agreement or negligent performance or tortious conduct under the Contract;

15.1.2. any claims made by a third party arising out of or in connection with the supply of Works, to the extent that such claim arises out of the breach, negligent performance or failure of the Contract by that party;

15.1.3. any claims made for actual or alleged infringement of a third party’s intellectual property rights; and

15.1.4. any claim made by a third party for death, personal injury or damage to property arising out of or in connection with defects in Works.

16. Default

16.1. If the Owner owes the Company any money, the Owner shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees and legal costs on a full indemnity basis).

16.2. Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of ten percent (10%) per annum pro rata.

16.3. Without prejudice to any other remedies the Company may have at law or under this agreement, if at any time the Owner is in breach of any obligation under these Terms, the Company may:

16.3.1. immediately pause or suspend the performance of this agreement;

16.3.2. terminate this Agreement and the Contract;

16.3.3. refuse to make any subsequent Order of the Works; and

16.3.4. claim damages for any costs, loss or expenses incurred by the Company attributable to the Owner’s failure to carry out its obligations.

17. Termination

Termination for Convenience

17.1. Either party may terminate this agreement by providing the other party with at least thirty (30) days’ written notice prior to the intended termination date.

17.2. Notwithstanding notice being received, in the event that the Owner cancels delivery of the Works, the Owner shall remain liable for any and all loss incurred by the Company as a result of the cancellation (including but not limited to prepaid amounts, loss of profits, re-stocking fees, mobilisation fees, storage fees, and goods ordered).

17.3. In the event that the Owner does not terminate the agreement in accordance with clause 17.1, the Owner will be further liable for the following cancellation fees:

17.3.1. Within 72 hours – 15% of the total cost of the Works;

17.3.2. Within 48 hours – 25% of the total cost of the Works;

17.3.3. Within 24 hours – 50% of the total cost of the Works; or

17.3.4. On the day – Full cost of the service, and any additional reasonable fees for time and travel incurred by the Company.

17.4. The Company reserves the right to waive the cancellation fee in the event of an unavoidable emergency.

Termination for Breach

17.5. The Company may immediately terminate or suspend this agreement by notice to the Owner if an Event of Default occurs.

17.6. If the Company commits any material or persistent breach of this agreement, the Owner must provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within fourteen (14) days, the Owner may terminate this agreement with immediate effect.

Effect of Termination

17.7. In the event of any termination of this agreement, the Owner will remain liable to pay to the Company the amount of the Price as set out in the Quote or invoice for Works already undertaken, and any amounts in connection with transport, shipping or freight costs and any other costs incurred by the Company.

18. Dispute Resolution

18.1. If any dispute concerning this Contract (a “Dispute”) shall arise between the Company and the Owner, either party may give to the other written notice within ten (10) business days.

18.2. Either party may refer the dispute to adjudication by notifying the other party in writing. The adjudication shall be conducted in accordance with the Building and Construction Industry (Security of Payment) Act 2009 (ACT) and any applicable rules.

18.3. The adjudicator will decide who will pay the adjudicator costs and any other costs of adjudication, and the parties are liable to pay those costs in the proportions decided by the adjudicator.

18.4. Nothing in this clause prejudices the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.

19. Force Majeure

19.1. To the maximum extent permitted by law, the parties shall expressly exclude liability for any damage and/or delay in the performance of any obligations under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the parties.

19.2. In the event that such delay or non-performance continues for ten (10) business days, the party not affected may terminate the Contract by giving five (5) business days’ written notice to the affected party.

20. Confidentiality

20.1. The parties must keep all confidential information confidential including, but not limited to, all information relating to the Works, a party, customers, suppliers, partners and/or any of the business or financial affairs of them that is regarded as confidential (“Confidential Information”).

20.2. The parties agree not to use or exploit any Confidential Information in any way except in the proper performance of these Terms, or disclose or make available any Confidential Information to any third party.

20.3. The obligations in this clause will not apply to any Confidential Information that is required by law or court order to be disclosed.

21. General

Notices

21.1. A notice given to a party under this agreement must be in writing and addressed to the appropriate party.

Severability

21.2. If a provision of this agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability, and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.

Survival

21.3. The obligations of the parties with respect to Confidentiality, Intellectual Property, Liability and Remedies and Termination survive the termination of this agreement.

Limitation of Damages

21.4. Except as otherwise provided for in these terms and conditions, the Company shall be under no liability whatsoever to the Owner for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach by the Company of this Agreement (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price).

Waiver

21.5. No failure or delay by a party to exercise a right or remedy under this agreement or by law shall constitute a waiver of that right or remedy.

Assignment

21.6. The parties may not assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of both parties.

Amendment

21.7. This agreement can be amended at any time by both parties if the amendment is signed and in writing.

Entire Agreement

21.8. This document contains the Company’s full Terms. These Terms embody the whole agreement between the parties and all previous dealings, representations and arrangements are hereby excluded and cancelled.

Electronic Execution

21.9. The parties agree and acknowledge that this agreement may be signed electronically, and any electronic signature executed by the parties shall be considered as valid and binding as if it were an original handwritten signature.

Governing Law and Jurisdiction

21.10. This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with the laws of the Australian Capital Territory, Australia.

Executed as an Agreement

In signing this Contract, the Owner acknowledges that:

1. They have been given the opportunity to get legal advice about the consequences of entering into the Contract.
2. Any representation, undertaking or assertion by the Company about the Work or any other aspect of the Contract that the Owner relied on in deciding to enter into the Contract is contained and accurately reflected in the Contract and the Contract Documents.
3. No representations or warranties have been made other than those expressly recorded in this Agreement.
4. It has the authority and capacity to enter into this Contract and does so out of its own free will.