These Terms and Conditions below (Terms) set out the agreement between you (you) and us should you proceed with engaging HLA Electrical Pty Ltd (ABN 81 660 451 301) trading as HLA Electrical (we, us or our) for our Services.
In these Terms and Conditions (Terms), unless the context otherwise requires, capitalised terms have the meaning given to them in these Terms, and:
Confidential Information includes information which:
(a) is disclosed to you in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to our business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and regardless of how you receive that information.
(a) the same as in GST Law;
(b) any other goods and services tax, or any tax applying to these Terms in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent. Parties means the parties to these Terms.
Payment Terms means the payment terms set out in the Proposal or as otherwise agreed between us. Personnel means a Party’s employees, consultants, suppliers, subcontractors or agents.
Price means the price as set out in the Proposal or as otherwise agreed between us. Proposal means the proposal of our Services attached to these Terms.
Quote means the quote or estimate provided to you for our Services, which may be given to you in lieu of a Proposal.
Services means the services that we will provide to you, which may be set out in the Proposal or Quote or as otherwise agreed between us.
(a) These Terms together with the Proposal or Quote form our Agreement (Agreement). You are deemed to have accepted our Agreement when you:
(1) sign the Proposal;
(2) confirm your acceptance of our Proposal or Quote via email to us; and/ or
(3) instruct us (whether in writing or orally) to start the provision of Services.
(b) The Agreement for us to complete the Services for you starts on the date you accept the Proposal and these Terms and applies from that date (Start Date).
(c) Subject to these Terms and any other timeline advised to you, we will start providing the Services within a reasonable time after the Start Date.
3 OUR OBLIGATIONS
(a) In consideration of you paying us the Price, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
(b) If we have agreed on a time in this Agreement within which the Services are to be provided, you acknowledge and agree that this is an estimate only and creates no obligation on us to provide the Services by that time.
(c) You may request a change to the Services by providing written notice to us (Variation Request). Variation Requests include, but are not limited to, the following:
(1) the request of a shorter timeframe and therefore additional labour hours;
(2) the amendment of the Scope or any specifications set out in the Summary;
(3) the increase of the cost of materials or components that form part of the performance of our Services, where this is beyond our reasonable control; and
(4) the extension of time is required to complete the Services due to the impact of any of the above changes.
(d) We have no obligation to comply with any Variation Request until:
(1) we have confirmed the Variation Request is acceptable in writing, including any required variation to the Price to perform the Variation Request (Price Variation);
(2) the Price has been adjusted to reflect the Price Variation; and
(3) you have paid us the adjusted Price in accordance with the Payment Terms.
(e) If there is a problem with the Services which is caused by a breach of this Agreement by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to (in our absolute discretion):
(1) remedying the Omission; or
(2) refunding you that portion of the Price paid by you with respect to the Omission.
4 YOUR OBLIGATIONS
(a) You must comply with these Terms and all of our reasonable requests or requirements.
(b) You must obtain, and provide to us, all things reasonably necessary to enable us to provide the Services.
(c) If required, you must provide exclusive access to the site for the Services (Site) for us to complete necessary work. Any interruptions to Site access may cause delays and additional costs.
(d) Where necessary, you must clearly mark the exact location and identify all services above and below the ground at the Site (including drains, pipes, sewers, mains and cables) to enable us to prevent damage to these services. If you are unable to identify these services you indemnify you for any expenses or loss caused by any damage.
(e) If there are hazardous materials on or around the Site (such as asbestos) you must notify us of this before the commencement of Services.
(f) You must comply with all relevant work, health and safety regulations as required by law. We reserve the right to stop work or take other immediately action in the event that the site for Services is considered unsafe by us.
(g) You acknowledge and agree that any Price or Quote provided to you is based on the information available and the understanding that the premises for the Services is in a standard timber frame plasterboard construction and existing electrical installations are in adequate condition and in compliance with current standards and regulations. Any additional works required to bring the installation up to standard may be deemed a Variation and additional costs may apply.
(h) You must pay us the Price, all disbursements (including travel and accommodation costs and third party costs incurred by us in the provision of the Services), and any other amounts payable to us under this Agreement in accordance with the Payment Terms.
(i) If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(1) immediately cease providing the Services;
(2) charge you interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly; and/ or
(3) refer the matter to a debt collection agency at your cost.
(j) You acknowledge that payment under this Agreement may be covered by the Building Industry Fairness (Security of Payment) Act 2017 (QLD) (BIF Act) and we reserve the right to use any and all mechanisms available under the BIF Act in the event that payment is not made in accordance with the Terms of this Agreement.
(k) You agree that you are not entitled to set off or deduct from the Price or Quote any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because any part of that invoice is in dispute.
5 PAYMENT OF GST
(b) Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
(c) In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), you will:
(1) pay to us an amount equal to any GST payable from any supply of Services by us in respect of which the Charges or any other amount is payable under this agreement; and
(2) make such payment either on the date when the Charges are due or within three (3) days after you are issued with a tax invoice, whichever is the later.
6 CANCELLATION OF SERVICES
(a) Services may only be cancelled where we have not yet commenced providing the Services and on the following terms:
(1) you must provide at least 48 hours’ notice to cancel or to reschedule our Services;
(2) where you have already paid a deposit for our Services, we will be entitled to retain the entire deposit amount; and
(3) if we have ordered materials custom to your specifications or any materials that are specific for your Services (Custom Materials) and you have cancelled our Services, you are liable to pay us the full amount owing on the Custom Materials.
(b) If you fail to provide at least 48 hours’ notice we reserve the right to charge you the full cost for our Services.
(c) We may cancel our Services with reasonable notice to you in the event the cancellation is necessary due to circumstances beyond our control. You agree we have no other Liability to you if this clause applies.
7 INTELLECTUAL PROPERTY
(a) As between the parties, all intellectual property rights (including copyright) developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement or the provision of the Services) will at all times vest, or remain vested, in us.
(b) On the Start Date, you grant us a perpetual, royaltyfree, world-wide, unconditional, transferable and irrevocable licence to use, develop, adapt and modify (Use) all intellectual property rights (including copyright) in any materials that you provide to us in connection with this Agreement including any Site plans you have had prepared, and you will ensure that any such Use does not infringe any intellectual property rights of any person.
(c) If you or any of your Personnel has any moral rights (as defined in the Copyright Act 1968 (Cth)) (Moral Rights) in any materials provided, used or prepared in connection with this Agreement, you (and you will ensure that your Personnel) consent to the infringement of those Moral Rights by us or our Personnel.
Despite anything to the contrary, to the maximum extent permitted by law:
(a) you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Start Date;
(b) you agree that this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms;
(c) our maximum aggregate Liability arising from or in connection with this Agreement will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim;
(d) we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:
(1) event or circumstance beyond our reasonable control;
(2) acts or omissions of you or your Personnel;
(3) defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or
(4) loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and (e) you will indemnify us for and against all Liability arising from or in connection with any wrongful act or omission by you or your Personnel.
9 IMPLIED TERMS AND CONSUMER GUARANTEES
(a) Subject to the below, any condition or warranty which would otherwise be implied in this Agreement is excluded.
(b) Our Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:
(1) in the case of services, to any one of the following as determined by us:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
We may use other persons or third parties to provide some or all of the Services.
(a) If any defective workmanship is discovered and none of the limitations set out in these Terms apply, we will remedy the defect at no cost to you for a period of 12 months (Warranty Notice Period) from the date of completion of Services provided you inform us within a reasonable timeframe within the Warranty Notice Period. This warranty does not apply to fair wear and
(b) You acknowledge and agree that if our Services include installation works (such as the installation of air conditioning units):
(1) ownership and title of the products being installed are transferred to you at the time of installation;
(2) if you have supplied the product to be installed, you warrant that it is suitable for the Services being performed. While we will test the product at the time of installation to ascertain that it is fit for purpose, we are not liable for any faults or failures associated with the product once the installation is complete; and
(3) we are not responsible for and have no liability for any defects with the product itself and any faults or failures that is due to the product must be referred to the manufacturer of the product.
(a) This Agreement will terminate upon written notice by:
(1) either party, if mutually agreed in writing between the parties;
(2) us, if you breach these Terms and that breach has not been remedied within 5 working days of being notified by us; or
(3) you, if we breach a material term of these Terms and that breach has not been remedied or overcome within 15 working days of being notified by you.
(b) On termination of this Agreement, you will:
(1) where this Agreement is terminated under clauses 12(a)(1) or 12(a)(2), immediately pay to us the Price and all of our additional costs resulting from the termination (including the cost for any Custom Material);
(2) where this Agreement is terminated under clause 12(a)(3), immediately pay to us the Price for the Services performed up to the date of termination (and all other amounts due and payable to us under this Agreement);
(3) immediately return to us all property, including Confidential Information, belonging to us or our Personnel; and
(4) not use any intellectual property rights (including copyright) belonging to us or our Personnel.
(c) Termination of this Agreement will not affect any rights or liabilities which a party has accrued under it.
(a) Disputes: A party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute (unless that party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).
(b) Confidentiality: You will (and will ensure your Personnel will) keep confidential, and not use or permit any unauthorised use of, any Confidential Information without our prior written consent, except where the disclosure is required by law.
(c) Notices: Any notice given under this Agreement must be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
(d) Relationship of Parties: This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
(e) Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
(f) Entire agreement: This Agreement contains the entire understanding and agreement between the parties in respect of its subject matter.
(g) Amendment: This Agreement may only be amended by written instrument executed by all parties.
(h) Survival: Clauses 3(e), 4(d) 6(c), 7, 8, 9, 11, 12(b), 13(a) and 13(b) survive termination of this Agreement.
(i) Governing law: This Agreement