TERMS & CONDITIONS
The following standard terms and conditions (Terms) apply where AWB carries out Works for a Client.
In these Terms:
“AWB” means Access Without Barriers Pty Ltd ACN 167 698 964;
“Client” means the person or entity who is engaging AWB to do the Works;
“Consequential Loss” means any loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity or any other loss or damage suffered by a party or any other person which is indirect or consequential;
“Contract” means the contract between AWB and the Client which consists of the Quotation, these Terms and the Order.
“Contract Sum” means the price for the performance of the Works specified in the Quotation;
“Contract Period” means the period of time to carry out the Works as set out in the Quotation or otherwise agreed with the Client in writing;
“Force Majeure Event” means any of the following events provided they are not caused by AWB or are outside of the control of AWB and could not have been prevented or avoided by AWB taking reasonably prudent steps:
(a) acts of government, civil unrest or acts of terrorism;
(b) flood, fire, earthquake, volcanic eruptions, tsunami, hurricane, cyclone or other natural disaster;
(c) ionising radiation;
(d) man made disasters; or
(e) epidemic or pandemic (excluding COVID-19) as declared by the World Health Organisation.
“Invoice” means an invoice issued by AWB to the Client setting out the amount to be paid by the Client;
“Loss” means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (whether direct, indirect, special, consequential or otherwise);
“Site” means the location where the Works are to be performed;
“Quotation” means AWB’s quote for the Works;
“Works” means the work specified in the Quotation.
“Workers” means directors, employees, agents and subcontractors of AWB.
(a) AWB will carry out the Works described in the Quotation for Contract Sum, which may be varied pursuant to the Terms. The Quotation may only be accepted by written notice to AWB within 30 days from the date of the Quotation and, if not so accepted, AWB reserves the right to revise it.
(b) The Contract:
i. supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Works; and
ii. (without limiting i. above) overrides any other terms and conditions (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract or any part of it.
(c) Commencement of the Works on Site by AWB and directed by the Client or payment by the Client will be taken as, and be deemed to be, acceptance of these Terms by the Client.
(d) AWB may subcontract the Works or part of the Works.
3. Terms of Payment
(a) Where the Quotation states that a deposit payment is required, the Client shall pay the deposit prior to and as a condition of commencement of the Works.
(b) AWB may:
(i) if the value of Works exceeds $5,000, submit progress claims to the Client for payment on or after the # day of the month for works performed prior to the # day of the month;
(ii) if the value of Works does not exceed $5,000, submit an Invoice to the Client on completion of the Works.
(c) The Client must pay the amount due within 30 days after receipt of an Invoice.
The Client must provide access to the Site for AWB and any employee or subcontractor of AWB to carry out the Works as required during working hours allowed by relevant statutory authorities. The Client must remove any personal property likely to impede the work.
5. Materials, Details and Dimensions
The Client shall provide AWB with all necessary dimensions and locations in adequate time to enable AWB to carry out and complete the Works in accordance with the Contract.
6. Existing Underground Services
Provide that within a reasonable time before the Works are commenced on the Site, the Client informs AWB of the presence, nature of location of underground services on the Site, AWB shall, at no cost to the Client, make good any damage which it may cause to such services.
7. Asbestos and Other Toxic Substances
This Contract is conditional upon the Site being free from asbestos and other toxic substances. If asbestos or other toxic substances are discovered, then the Client shall accept full responsibility for the resolution of any problems arising and shall add to the Contract Sum an amount equal to any costs necessarily incurred by AWB as a consequence of such problems.
8. Finished Surfaces
Unless agreed otherwise, the Client shall make good at its own cost all finished surfaces, including but not limited to ceiling tiles and panels, face brickwork and rendered masonry surfaces, which AWB may reasonably have to break into or disturb in performance of the Works.
(a) If the Client requests any variation in the Works during the Contract Period, AWB shall, in accepting the variation, be entitled to increase or decrease the Contract Sum to take account of the total costs of such variation, inclusive of the time needed to prepare the costings estimate of the variation. AWB shall also be entitled to a reasonable extension of time to complete the Works, as varied. The Client agrees that they will be liable for any increases to the Contract Sum as a result of variations.
(b) AWB shall submit a written variation quotation revising the Contract Sum. This variation quotation may only be accepted by written notice to AWB within 3 days from the date of the variation quotation and, if not so accepted, AWB reserves the right to revise it.
(c) Variation quotations are exclusive of GST and are for the variation works described only. Prices quoted for variation works are for ‘business hours’ only (unless otherwise stated).
AWB is not responsible for any delay caused by something beyond its sole control, including but not limited to:
(a) a breach of the Contract by the Client;
(b) a Variation;
(c) any other act or omission of the Client;
(d) a Force Majeure Event; or
(e) delay in the supply of materials or transport to the Site.
The Contract Period will be extended by the duration of any such delay as notified in writing by AWB to the Client from time to time and such extension shall be treated as a Variation to be priced under clause 9.
11. Retention of Title
The Works shall be at the Client’s risk. Title in materials supplied by AWB will only pass on payment in full.
(a) Where the Works contain an electrical component, AWB warrants that all materials and workmanship comprising the Works shall conform to the current edition of the AS/NZS 3000 Wiring Rules and the requirements of any authority regulating the supply and use of electricity or electrical installations in force on the date of the performance of the Works.
(b) Except where the Client has taken possession of the Works without the consent of AWB, AWB is liable to make good at its own cost defects in the Works reasonably notified in writing to AWB within six months of the date of handover of the Works.
(c) AWB shall not be liable to remedy any damage or rectify any defects to the Works arising from any work carried out on the Site by the Client or the Client’s servants or agents at any time.
(d) Where any warranty has been given by a third party in respect of materials and workmanship supplied by that third party to AWB and incorporated in the Works, and such warranty imposes less obligations on the third party than those imposed on AWB by clause 12(b) AWB shall give a like warranty to the Client, which shall apply to the exclusion of clause 12(b).
(e) Where the Client provides materials to AWB, AWB does not warrant these materials whatsoever.
13. Limitation of Liability
(a) AWB shall not be liable in contract or in tort or otherwise arising, for any Consequential, Loss which may be claimed to have resulted from AWB’s performance or failure to perform any obligation under the Contract.
(b) Notwithstanding anything to the contrary, in no circumstances shall AWB be liable in contract or in tort or otherwise, for loss, expense or damages incurred, sustained or suffered by the Client in an amount exceeding 10% of the Contract Sum.
14. Cancellation by the Client
(a) If the Client requests cancellation of the Contract, the Client shall pay for the Work done pursuant to the Contract to the date of such request and shall pay AWB compensation for all Loss (including Consequential Loss) suffered by it as a result of such cancellation.
(b) Either party may terminate the Contract by written notice to the other party, if the other party breaches the Contract in a material respect and in the reasonable opinion of the party, the breach:
(i) cannot be remedied; or
(ii) can be remedied but is not remedied by the other party within 7 days after the party gives the other party notice of the breach.
(c) Any termination of the Contract under clause 14(b) shall not prejudice or affect any rights or remedies accrued by either party prior to the termination and, in the case of AWB, any Losses suffered in consequence of the termination.
(d) In addition to the rights of AWB as provided for elsewhere in the Contract, AWB may at any time and at its sole and absolute discretion, terminate the Contract in whole or in part by giving the Client not less than 14 days’ notice.
15. Force Majeure
(a) AWB is not liable for any failure to perform any of its obligations under these Terms which is caused by a Force Majeure Event. In such circumstances, AWB may suspend performance of any obligations under these Terms while the event continues. AWB shall not incur any liability to the Client in respect of such suspension.
(b) If the Force Majeure Event in clause 15(a) continues for more than 30 days, AWB may without liability terminate the Contract immediately by notice in writing to the Client.
16. Implied Terms
No warranty, condition or representation, other than those contained in these Terms shall be included in this Contract by implication, statute or otherwise, but nothing contained here shall be deemed to attempt to exclude, restrict or modify any implied warranty or condition in relation to the goods and services to be supplied by AWB, the exclusion, restriction or modification of which would pursuant to any statute, including the Competition and Consumer Act 2010 render this clause or anything contained here void or illegal.
17. Unsafe Wiring or Equipment
If the Works contain an electrical component, AWB must in accordance with its obligations under the Electricity (Licensing) Regulations 1991 (WA) (Regulations):
(a) ensure that any wiring or equipment to be connected or remain connected to an electrical installation or supply of electricity is safe;
(b) repair or isolate any faulty or unsafe wiring or equipment; and
(c) report any faulty or unsafe wiring or equipment to the relevant network operator.
If AWB is required to perform any additional work in order to comply with its obligations under this clause 17 and the Regulations, the Client must:
(e) allow AWB to perform the additional work; and
(f) pay the cost of the additional work to AWB; or
(g) if the Client is not willing to pay the cost of the additional work, provide a written notice of its intention to AWB prior to commencement of the work.
Where clause 17(f) applies, AWB must isolate the affected circuit and report the matter to the relevant network operator.
18. No Poaching
(a) The Client acknowledges and agrees that it will not:
(i) directly solicit for employment any Workers;
(ii) make an offer to employ any Workers;
(iii) employ any Workers;
(iv) procure or induce any Workers to terminate their employment with AWB; or
(v) counsel, procure or otherwise assist any person to do any of the acts referred to above,
except with the prior written approval of AWB.
(b) In the case of a written agreement, any Workers must not commence his or her employment with the Client until at least three months have elapsed since termination of his or her employment, with that period to be spent at another site, unless AWB otherwise approves.
(c) This clause 18 does not prevent the Workers from giving consideration to any application for employment submitted on an unsolicited basis or in response to a general advertisement of employment.
(d) The obligations under this clause survive the termination of the Contract.
Except as required by any applicable law or regulatory requirement or as otherwise permitted by the Agreement, the Client may not make any public announcements or disclosures as to the Contract, or otherwise in relation to the subject matter of the Contract including AWB and its Workers, without the prior written consent of AWB.