1. THE REGISTERED BUILDER
This Agreement is between Fitout Builders Pty Ltd ACN 616 844 707 (“FITOUT BUILDERS”) and the Registered Builder.
By accepting the terms and conditions for the Service, or otherwise accepting performance of the Service by FITOUT BUILDERS, the Registered Builder hereby contracts with FITOUT BUILDERS on the terms specified in this Agreement.
3.1 In consideration of the Registered Builder’s performance of its obligations in this Agreement (including obligations of the Registered Builder in its capacity as a Quoting Builder or Preferred Builder), FITOUT BUILDERS shall carry out the Service.
3.2 FITOUT BUILDERS warrants that the Service shall be provided by FITOUT BUILDERS:
- (a) in good faith;
- (b) efficiently, with due care, skill and diligence;
- (c) in a manner which is fit for the Official Purpose; and
- (d) in compliance with all applicable laws and regulations applicable from time to time.
3.3 FITOUT BUILDERS may, at its sole discretion, suspend the whole or any part of the Service under this Agreement if the Registered Builder is a Quoting Builder and does not provide FITOUT BUILDERS with a Quotation requested from the Registered Builder within the time period specified by FITOUT BUILDERS on the Website.
3.4 The Registered Builder will not be entitled to make, and waives its rights to make, any Claim against the FITOUT BUILDERS arising out of, or in connection with, the suspension by FITOUT BUILDERS of the whole or any part of the Service under this Agreement.
3.5 FITOUT BUILDERS reserves the right not to provide the Service to any Registered Builder who or which in its reasonable opinion:
- (a) may not, or is likely to not, abide by these terms and conditions;
- (b) may not, or is likely to not, provide a Client with high quality building work or customer service if it becomes the Preferred Builder and negotiates a contract for works with a Client; or
- (c) may, or is likely to, damage the reputation of FITOUT BUILDERS or the Website.
4. REGISTERED BUILDER OBLIGATIONS
4.1 A Registered Builder must at the time of registering for an account with FITOUT BUILDERS, and at all material times thereafter:
- (a) take out and maintain an Insurance Policy;
- (b) maintain all registrations and licences required to perform building work pursuant to legislation applicable to building work in the State or Territory in which they reside, or their principal place of business is registered (as applicable).
4.2 A Quoting Builder must respond to any invitation to quote Building Works by either declining the invitation to provide a Quotation within 24 hours of receiving the invitation or submitting a Quotation to FITOUT BUILDERS within 5 business days of such invitation.
4.3 A Registered Builder must not accept any invitation or otherwise take any steps to be a Quoting Builder in respect of Building Work:
- (a) not within the scope of their registration or licence to perform building work; or
- (b) not covered by their Insurance Policy.
In the event of breach of this clause, FITOUT BUILDERS reserves the right to immediately suspend the Service in respect of such Building Work.
Upon suspension, the Registered Builder will cease being a Quoting Builder in respect of the Client’s proposed Building Work.
4.4 Any Quotation provided by the Quoting Builder must include the information requested on by FITOUT BUILDERS via the Website. If the Quotation does not contain the information requested by FITOUT BUILDERS, FITOUT BUILDERS may withdraw the invitation the Registered Builder to supply the Quotation or refuse to supply the Quotation to the Client.
4.5 If the Client alters, amends or varies the Fitout Documents after they are disclosed to the Quoting Builder, FITOUT BUILDERS shall provide the revised Fitout Documents to the Quoting Builder. The Quoting Builder must provide a Quotation (or an amended Quotation if a Quotation has already been submitted) based on the revised Fitout Documents. An extension of time for the Quotation may be granted by FITOUT BUILDERS in these circumstances.
4.6 Subject to clause 12.1(d), a Quoting Builder may elect not to be a Quoting Builder in respect to a Client within 24 hours of the invitation to quote being notified to the Quoting Builder by FITOUT BUILDERS.
4.7 FITOUT BUILDERS may withdraw the invitation to a Quoting Builder to supply a Quotation in respect of a Client if they do not submit their Quotation by the deadline for submission notified to the Quoting Builder by FITOUT BUILDERS (as amended by FITOUT BUILDERS at its sole discretion from time to time).
4.8 A Quoting Builder who is extended an invitation to negotiate with a Client for a contract to perform Building Works must either accept or reject the invitation within the period of time specified on the Website by FITOUT BUILDERS.
4.9 A Registered Builder must contact a Client who has selected their quote within 7 days of FITOUT BUILDERS supplying the Client’s contact details to the Registered Builder.
4.10 A Quoting Builder must not directly or indirectly contact the Client prior to becoming a Preferred Builder, except with the express written consent of FITOUT BUILDERS.
4.11 FITOUT BUILDERS reserves the right to suspend the Service to any Registered Builder that contacts the Client prior to becoming a Preferred Builder, except with the express written consent of FITOUT BUILDERS.
4.12 A Quoting Builder may request access to the Site of the Client for the sole purpose of formulating its Quotation. All such requests must be made via FITOUT BUILDERS.
4.13 If the Quoting Builder is provided with access to the Site, the Quoting Builder, its officers, employees and contractors agree to comply with all lawful instructions of either FITOUT BUILDERS or the Client whilst present on Site.
4.14 All prices and other information in the Quotation shall be valid for no less than 28 days. Any quotation which is valid for less than 28 days will not be submitted to the Client for their consideration.
4.15 Until the Quoting Builder becomes the Preferred Builder, it may not engage in any negotiations or discussions relating to entering into a contract (including contract terms) with the Client.
4.16 If the Quoting Builder does not pay the Referral Fee within 3 days of their quote being selected by the Client, the Quoting Builder shall not be the Preferred Builder, and:
- (a) FITOUT BUILDERS may, at its absolute discretion, nominate another registered builder to provide a Quotation; and/or
- (b) the Client may, at its absolute discretion, select another Quoting Builder to be the Preferred Builder.
4.17 The Registered Builder represents, warrants and undertakes to FITOUT BUILDERS that:
- (a) the Registered Builder has full power and authority to enter this Agreement and to perform all its obligations under it, and that:
- (i) where the Registered Builder is an individual, the Registered Builder has legal capacity to execute this Agreement;
- (ii) where the Registered Builder is a company or incorporated entity, the Registered Builder has been and is duly formed under the laws of the place of its formation and has power and authority to deal in Contracts and the person executing this Agreement has full power and authority to execute this Agreement on behalf of the Registered Builder.
- (b) in executing this Agreement and in giving effect hereto the Registered Builder will not infringe any provision of any deed or other document or agreement to which the Registered Builder is a party, or any applicable legislation;
- (c) the Registered Builder has considered its objectives and needs, and has formed the opinion that the Service is suitable for the Registered Builder’s purposes; and
- (d) the Registered Builder will, and has (as applicable) provided FITOUT BUILDERS with all information requested by FITOUT BUILDERS as part of the registration process.
4.18 A Quotation submitted by the Quoting Builder may be amended by the Quoting Builder, at its sole discretion, prior to the deadline for submission of Quotations.
4.19 A Quotation submitted by the Quoting Builder may be amended by the Quoting Builder, at its sole discretion, prior to the deadline for submission of the Quotation.
4.20 A Preferred Builder shall not enter into contractual arrangements with the Client for a contract sum which exceeds the total amount quoted for the Building Work in the Quotation, unless:
- (a) the specification of the Building Works agreed by the Client departs from the Building Work disclosed in the Fitout Documents; and
- (b) the amount by which the contract sum exceeds the total amount quoted for the Building Work is reasonable in the circumstances.
4.21 The Preferred Builder must provide FITOUT BUILDERS with a copy of its signed contract with the Client.
4.22 A Quoting Builder or Preferred Builder acknowledge and agree that the Fitout Documents are provided solely and exclusively for the purposes of soliciting a Quote from Quoting Builders.
4.23 The Registered Builder acknowledges that the information supplied by FITOUT BUILDER is supplied to FITOUT BUILDER by the Client. FITOUT BUILDER takes no responsibility for, and does not warrant, the accuracy of that information including any measurements and quantities specified by FITOUT BUILDERS either in the Fitout Documents or otherwise.
4.24 A Registered Builder is, in submitting its Quotation, deemed to have:
- (a) examined and informed itself in relation to all aspects of the Building Work including the Fitout Documents, and measurements and quantities specified by FITOUT BUILDERS either in those Fitout Documents or otherwise, and that the quantities provided by FITOUT BUILDERS are accurate having regard to the measurements in the Fitout Documents;
- (b) formed its own assessment of the amount of work, materials, plant and equipment necessary to carry out the Building Works disclosed in the Fitout Documents and the difficulties and hazards which affect the provision of the Building Works;
- (c) examined all further information relevant to the risks, contingencies and other circumstances having an effect on its Quotation available on reasonable enquiry;
- (d) satisfied itself as to the correctness and sufficiency of its Quotation including quoted rates, or lump sums and things necessary for the due and proper performance and provision of the Building Works as described in the Fitout Documents.
4.25 Neither FITOUT BUILDERS or the Client intend a Registered Builder to rely on the Fitout Documents to perform the Building Work, obtain building permits for Building Work, enter into a contract with the Client or to include the Fitout Documents in the contract with the Client. The Registered Builder acknowledges that any electronic copy of the Fitout Documents supplied to the Registered Builder by FITOUT BUILDERs, is supplied and accepted on this basis.
4.26 The Registered Builder should discuss the Fitout Documents with the Client following referral of the Preferred Builder to the Client. The Preferred Builder must prepare new drawings and specifications or require the Client to engage a third-party consultant to prepare new drawings and specifications for the Building Work.
4.27 The Registered Builder acknowledges that FITOUT BUILDERS does not accept any responsibility for any loss or damage suffered by the Registered Builder as a result of reliance by the Registered Builder on the Fitout Documents for the purpose of planning or completing the Building Work or entering into a contract for the Building Work with the Client.
4.29 The Registered Builder hereby warrants that:
- (a) it enters into this Agreement in its own capacity, as not for or on behalf of any other person or corporation;
- (b) it shall, at all times, personally perform its obligations under this Agreement and shall refrain from subcontracting out the performance of its obligations under the Agreement.
4.30 A Registered Builder selected as the Preferred Builder shall enter discussions with the Client, and enter into a contract for the Building Work with the Client in its own right, and shall not substitute any other party, or cause any other party (whether an associate or related body corporate of the Registered Builder within the meaning of the Corporations Act, or not) to:
- (a) enter into discussions with the Client about the Building Work; or
- (b) enter into a contract for the Building Work with the Client.
4.31 A Registered Builder must not request or demand a contract sum which exceeds the total amount quoted for the Building Work in the Quotation by 10% or more. If the Registered Builder so requests or demands, FITOUT BUILDERS is entitled to provide the name of an alternative Quoting Builder to the Client. In such case, subject to FITOUT BUILDERS receiving a Referral Fee from the alternative Quoting Builder, FITOUT BUILDERS will refund the Referral Fee paid by the Registered Builder in respect of the Client to the Registered Builder less an amount of $200.00.
5.1 The Quoting Builder’s whose quote is selected by the Client is liable to pay a Referral Fee to FITOUT BUILDERS in consideration for FITOUT BUILDERS providing the Client’s details to the Quoting Builder. The Referral Fee must, as a condition to becoming the Preferred Builder, pay the Referral Fee to FITOUT BUILDERS.
5.2 The amount of the Referral Fee is, subject to clause 5.3, 1.75% plus GST (as an introductory offer) of the total amount of the Quotation submitted by the Preferred Builder - payable immediately prior to the Registered Builder receiving the client’s contact details and project information.
5.3 The maximum Referral Fee is $5,250.00. FITOUT BUILDERS may, at its sole discretion, increase the maximum Referral Fee by prior notice to a Registered Builder.
5.4 A Quoting Builder who is introduced to the Client by FITOUT BUILDERS and enters into a contract for the Building Work with the Client, but is not selected as the Preferred Builder, is liable to pay and must pay FITOUT BUILDERS an amount equivalent to 1.75% of the contract sum. This amount is payable immediately upon entering the contract with the Client and may be automatically charged by FITOUT BUILDERS to the credit card nominated by the Quoting Builder.
5.5 FITOUT BUILDERS will issue the Preferred Builder with a Tax Invoice for any fees.
5.6 The Client hereby authorizes FITOUT BUILDERS to charge the credit card nominated by the Preferred Builder to FITOUT BUILDERS at the commencement of the engagement, for any applicable Referral Fee.
5.7 Any fee that a Registered Builder is liable to pay must be paid without set-off or counterclaim.
6.1 The parties acknowledge that all Confidential Information of the other party which may come to their knowledge or into their possession arising from FITOUT BUILDERS’s engagement is and remains the property of the other party, and agree that they will:
- (a) use the Confidential Information of the other party solely for:
- (i) in the case of Confidential Information acquired by FITOUT BUILDERS, the purpose of performing, or in connection with, the Service; and
- (ii) in the case of Confidential Information acquired by the Registered Builder, for the Official Purpose.
- (b) at all times keep the Confidential Information in confidence;
- (c) they will not, either during or after FITOUT BUILDERS’s engagement with the Registered Builder, disclose any Confidential Information of the other party to any person, organisation or third party unless required to do so by the other party or by law;
- (d) they will not, either during or after FITOUT BUILDERS’s engagement with the Registered Builder, make use of any Confidential Information of the other party to gain directly or indirectly any improper advantage; and
- (e) they will not disclose or use, for their own purposes or for the purposes of any person associated with them, any Confidential Information of the other party.
6.2 The parties’ obligations of confidentiality owed to the other party under this clause in respect of the Confidential Information shall survive Termination.
6.3 On Termination of this Agreement, the parties must return, and ensure that any person who receives the Confidential Information by their authority returns, the Confidential Information (in any form in which it is held) of the other party.
6.4 The clause 6 shall survive Termination of this Agreement.
7. INTELLECTUAL PROPERTY
7.1 The Registered Builder acknowledges and agrees that all right, title and ownership and interest in the Fitout Documents (including the Intellectual Property therein) is permanently, irrevocably, solely and exclusively vested in the Client and shall remain with the Client, and that the Registered Builder will not attach or contest the validity of Client’s right, title and ownership interest.
7.2 The Registered Builder must not do or permit anything to be done which is inconsistent with Client’s right, title or interest in the Fitout Documents. If contrary to this clause, the Registered Builder attaches or contents the Client’s right, title or interest, the Client shall have unrestricted rights to enforce, exercise and obtain all legal rights and remedies against the Registered Builder including temporary, preliminary and permanent injunctive relief without any obligation to provide security or prove that money damages are an inadequate remedy.
7.3 The Registered Builder acknowledges and agrees that all right, title and ownership and interest in the Website and any other Intellectual Property provided by FITOUT BUILDERS to the Registered Builder is permanently, irrevocably, solely and exclusively vested in the Registered Builder and shall remain with FITOUT BUILDERS, and that the Registered Builder will not attach or contest the validity of FITOUT BUILDERS’s right, title and ownership interest.
7.4 FITOUT BUILDERS hereby agrees that all right, title and interest in the:
- (a) Quotation (including Intellectual Property therein); and
- (b) Intellectual Property provided by the Registered Builder to FITOUT BUILDERS in the course of providing the Service, is permanently and irrevocably vested in the Registered Builder and shall remain with the Registered Builder.
7.5 The Registered Builder hereby grants to FITOUT BUILDERS a non-exclusive, royalty free licence to use the Quotation (including Intellectual Property therein) and any Intellectual Property provided to FITOUT BUILDERS, to perform the Service.
8.1 FITOUT BUILDERS shall purchase and maintain at their own cost professional indemnity insurance to the value of $1,000,000.
8.2 FITOUT BUILDERS will on request provide the Registered Builder with proof of the insurance.
8.3 The Registered Builder must, prior to entering into any contractor with the Client:
- (a) ensure that the Client is named as a beneficiary of any Insurance Policy; and
- (b) take out an additional insurance policy providing an indemnity in respect of completion of the Works (Defects Liability Insurance) to the minimum extent required by the regulations or any Ministerial Order made pursuant those regulations.
8.4 The Registered Builder must provide the Client and FITOUT BUILDERS with proof of compliance with clause 8.3.
9.1 In this clause:
- (a) “GST” means the Goods and Service Tax levied under the GST Act or any other goods and Service tax, value added tax, consumption tax or tax of similar effect levied from time to time;
- (b) “GST Act” means the A New Tax System (Goods and Service Tax) Act 1999 (Commonwealth) (as amended); and
- (c) words and phrases which are defined in the GST Act have the same meaning when used here.
9.2 Any amount payable by the Registered Builder under this Agreement in respect of a Taxable Supply by FITOUT BUILDERS shall, unless otherwise indicated, be expressed as a GST exclusive amount and the Registered Builder must, in addition to that amount and at the same time pay to FITOUT BUILDERS the GST payable in respect of that supply.
9.3 FITOUT BUILDERS must issue an adjustment note for any adjustments which arise in relation to a Taxable Supply as and when required to do so by the GST Act.
10. INDEMNITY AND RELEASE
10.1 The Registered Builder hereby release and forever discharge FITOUT BUILDERS, its directors, employees, contractors and agents from all Liabilities arising from or related to:
- (a) Cancellation or suspension of the Service by FITOUT BUILDERS;
- (b) the Registered Building not being extended an invitation to treat with the Client for any reason whatsoever;
- (c) the Registered Builder not submitting a Quotation within 5 business days of receiving the invitation to provide a Quotation;
- (d) any deficiencies, errors or omissions in the Quotation submitted by a Registered Builder; or
- (e) reliance by the Registered Builder or the Client on the Fitout Documents in relation to, or connected with planning for, or completing, the Building Work or entering into a contract for the Building Work with the Client.
10.2 The Registered Builder hereby indemnifies and forever holds harmless FITOUT BUILDERS, its directors, employees, contractors and agents against all liabilities, costs (including legal costs, whether or not under a costs agreement, on an indemnity basis), expenses, damages (including all consequential, special and punitive damages), penalties or fines incurred by the FITOUT BUILDERS to any third party (including the Client) arising directly or indirectly from or in connection with, the Registered Builder’s:
- (a) performance of its obligations under this Agreement;
- (b) breach by the Registered Builder of its obligations under this Agreement; or
- (c) negotiations and discussions with the Client about performing the Building Work or the terms and conditions thereof;
- (d) breach by the Registered Builder of any contract entered into between the Registered Builder and the Client.
10.3 This clause 10 survives expiry or termination of this Agreement.
11. LIABILITY, WARRANTIES AND ACKNOWLEDGEMENTS
11.1 Subject to this clause, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, FITOUT BUILDERS is not liable to:
- (a) the Registered Builder; or
- (b) any third party; for
- (i) any loss or damage of any kind caused by or resulting from any act or omission of:
- (A) FITOUT BUILDERS;
- (B) the Registered Builder;
- (C) any third party;
- (D) or any of FITOUT BUILDERS’s employees, agents or contractors; or
- (ii) any loss, damage (including without limitation any loss of profits, or economic, special, indirect or consequential loss or damage), liability, expense, injury or death sustained or incurred by the Registered Builder; or resulting directly or indirectly out of any:
- (A) negligence of FITOUT BUILDERS; or
- (B) breach by FITOUT BUILDERS under any contract, even if FITOUT BUILDERS is notified of the possibility of that potential loss or damage.
11.2 Any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or under the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable Law.
11.3 Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, condition, warranty, right or remedy conferred on the Registered Builder by the Australian Consumer Law or any other applicable Law that cannot be excluded restricted or modified by agreement.
11.4 Subject to clause 11.3 FITOUT BUILDERS does not, nor do any of its directors, officers, agents or employees, warrant or guarantee that the Service will be fit for the purpose for which the Registered Builder used the Service, in circumstances where:
- (a) the Registered Builder engages in a breach of the terms of this Agreement;
- (b) the Registered Builder does not include the information requested by FITOUT BUILDERS on its Quotation; or
- (c) the Registered Builder provides information in its Quotation is not true and correct, or is misleading.
11.5 A Registered Builder (including in its capacity as a Quoting Builder or Preferred Builder) hereby acknowledges and agrees that:
- (a) FITOUT BUILDERS is a provider of services pursuant to separate service agreements with the Client and the Registered Builder (including in their capacity as Quoting Builder and Preferred Builder) respectively;
- (b) nothing in this Agreement or any other deed or agreement (including the agreement between FITOUT BUILDERS and the Client) creates, or is intended to create, any other form of relationship between FITOUT BUILDERS and the Client or FITOUT BUILDERS and the Registered Builder, including any agency, employment, partnership or joint venture relationship;
- (c) FITOUT BUILDERS does not make any assessment of a Quotation provided by a Registered Builder other than to ensure it contains the Information requested by FITOUT BUILDERS to be included in the Quotation;
- (d) FITOUT BUILDERS does nor, and is not responsible for selecting a Quoting Builder to become the Preferred Builder in respect of a Client;
- (e) in communicating the Clients selection of the Quoting Builder to be the Preferred Builder and communicating the invitation to treat the Quoting Builder, FITOUT BUILDERS does not endorse, approve or otherwise express any opinion on the selection;
- (f) in selecting the Quoting Builder to be the Preferred Builder and extending it an invitation to treat the Client:
- (i) FITOUT BUILDERS is not, and does not intend to, create a legally binding contract with the Preferred Builder, and shall not be liable to the Registered Builder in law or in equity; and
- (ii) FITOUT BUILDERS does not, and is not intending to create a legally binding contract with the Registered Builder and the Client, or between the Quoting Builder and FITOUT BUILDERS; and shall not be liable to the Registered Builder in law or equity;
- (g) FITOUT BUILDERS, including its directors, officers, agents or employees do not make any represent or give any warranty, or provide any guarantee, that the selection of the Quoting Builder as a Preferred Builder will result in the Preferred Builder entering into a legally binding contract to provide Building Work with the Client;
- (h) if the Preferred Builder increases or takes steps to increase the total amount for the Building Work specified in their Quotation or vary the building materials or methodologies specified in their Quotation, other than in the circumstances in clause 4.20(a) and (b), the Preferred Builder shall immediately cease to be the Preferred Builder and the Client may, at its absolute discretion:
- (i) refrain from entering into a building contract with them; and/or
- (ii) select another Quoting Builder as the Preferred Builder;
11.6 Subject to clause 11.3, FITOUT BUILDERS does not, nor do its directors, officers, employees, contractors or agents warrant or guarantee that any information which is disclosed to the Registered Builder in respect of a Client or the Building Work is true and correct.
11.7 The Registered Builder hereby acknowledges and agrees that:
- (a) FITOUT BUILDERS recommend that the Registered Builder makes its own independent inquiries into the accuracy of the Fitout Documents;
- (b) it will make, its own independent inquiries into the accuracy of the Fitout Documents, any Information supplied to it by FITOUT BUILDERS and Site-Related Issues; and
- (c) this Agreement constitutes the entire agreement between the parties and there are no other terms of this Agreement or other agreements between the parties, relating to, or affecting the Service, including the manner in which the Service is performed, or the procedures adopted in respect of the Service.
11.8 Subject to clause 11.3, FITOUT BUILDERS does not warrant or guarantee that there is no Latent Condition affecting the Site.
11.9 Subject to clause 11.3, FITOUT BUILDERS does not warrant or guarantee:
- (a) the criteria, requirements or methodology that will be applied by the Client in selecting the Quoting Builder to be the Preferred Builder;
- (b) that the Client will select the Quoting Builder with the Quotation including the lowest amount for the Building Work to be the Preferred Builder;
- (c) that the Client will rely solely on the contents of the Quotation provided by the Quoting Builder in selecting the Quoting Builder to be the Preferred Builder;
- (d) that the Client will not make its own independent inquiries about, or conduct due diligence into, the business or reputation of the Quoting Builder, or any of its directors, officers, employees, contractors or agents.
11.10 To the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the liability of FITOUT BUILDERS for a breach of a non-excludable condition or consumer guarantee warranty referred to in this clause is limited, at FITOUT BUILDERS’s option, to the amount of the total fees payables under this Agreement.
11.11 FITOUT BUILDERS’s Service is web-based and relies on telecommunications technologies for its delivery. The Registered Builder acknowledges that there are many factors outside of the control of FITOUT BUILDERS in supply of the Service, particularly relating to supply of telecommunication services to the Registered Builder’s premises. FITOUT BUILDERS’s does not provide any warranty that Service is fault fee, will never be interrupted or is available for use at a particular download speed, quality or performance. If there is an interruption to the Service due to technological fault within the control of FITOUT BUILDERS, all time periods specified in this Agreement will be extended by the duration of the interruption to the Services. FITOUT BUILDERS will not be in breach of the Agreement, or liable for any loss or damage suffered by Registered Builder, as a result of any interruption to the Services whatsoever.
11.12 This clause 11 survives expiry or termination of this Agreement.
12.1 FITOUT BUILDERS has the right to terminate this Agreement or suspend Services to the Registered Builder (whichever determined by FITOUT BUILDERS at its sole discretion), immediately, if the Registered Builder:
- (a) commits a breach of an essential term of this Agreement;
- (b) breaches clause 4.1, 4.3, 4.10, 4.13, 4.15, 4.20 or 4.21 of the Agreement;
- (c) commits a breach of any of clauses 4.2 or 4.9, three (3) or more times in any six (6) month period, irrespective of whether the breach was remedied by the Registered Builder or not;
- (d) declines the invitation to provide a Quotation three (3) or more times in any six (6) month period, other than in accordance with clause 4.3;
- (e) does not enter into a contract to perform Building Work with a Client after the Client selects their Quotation, three (3) or more times;
- (f) breaches a term of this Agreement other than those referred to in clauses 12.1(b), 12.1(c), 12.1(d) or 12.1(e), and fails to remedy the breach within seven (7) days after being notified that it requires remedy;
- (g) engages in persistent breaches of any of the terms of this Agreement;
- (h) engages in any conduct for the purpose of avoiding its payment obligations under this Agreement;
- (i) engages in any behaviour during the course of, or in connection with, FITOUT BUILDERS’s engagement that can be characterised as an act or acts of dishonesty, fraud, neglect of duty or a breach of any policies or regulations adopted by the Registered Builder which is likely in the reasonable opinion of the FITOUT BUILDERS to bring it into disrepute or cause loss to the FITOUT BUILDERS; or
- (j) suffers an Insolvency Event;
- (k) is not, in the reasonable opinion of FITOUT BUILDERS, a person of good fame or character, or a fit and proper person; or
- (l) the subject of a complaint from a Client in circumstance where, in the reasonable opinion of FITOUT BUILDERS the complaint arises from or is related to:
- (i) a breach by the Registered Builder of this Agreement; or
- (ii) conduct by the Registered Builder which is unlawful, fraudulent, misleading, deceptive, unethical or in bad faith.
12.2 The Registered Builder has the right to terminate this Agreement immediately in the event that FITOUT BUILDERS:
- (a) breaches this Agreement and failed to remedy the breach within seven (7) days after being notified that it requires remedy; or
- (b) engages in any serious or persistent breaches of any of the terms of this Agreement.
12.3 FITOUT BUILDERS has the right to terminate this Agreement with 4 weeks’ notice in writing to the Registered Builder.
12.4 Immediately following Termination:
- (a) both parties must cease using any Confidential Information and Intellectual Property of the other and deliver any Confidential Information that it holds in any form up to the the other party together with all materials related to it or in any way associated with it, possessed by or in the control of the party;
- (b) both parties must deliver to other party and cease using all property and materials belonging to the other party in their control; and
- (c) the Registered Builder must pay all outstanding Fees to FITOUT BUILDERS.
12.5 Termination of this Agreement pursuant to this clause 12 is without prejudice to any right of action or remedy which has accrued or may accrue in favour of either party.
12.6 The Termination of this Agreement shall not release the parties from any obligations imposed under this Agreement which are stated to survive Termination or the obligations may be construed as continuing notwithstanding the Termination.
13. FORCE MAJEURE
In case either of the parties is totally or partially unable to fulfil one or more of the obligations under this Agreement as a result of acts or occurrences beyond the control, though partial, of the party involved such as, but not limited to, actions, omissions, impositions by local federal or national government authorities, fire, flood, earthquake and other natural disasters, Acts of God, war, revolution, strike, fuel shortages, shortage of raw materials, the party involved will be totally or partially relieved from fulfilling its contract obligations during the period of force majeure, provided that the party involved notifies the other party of the circumstances as soon as reasonably possible.
14. RELATIONSHIP BETWEEN THE PARTIES
14.1 This Agreement will not be deemed to create a partnership, employment, joint venture or agency relationship of any kind between the parties.
14.2 FITOUT BUILDERS agrees that it is solely responsible, and that the Registered Builder has no responsibility to it for payroll tax, Workcover, Worker’s compensation contributions, annual leave, long service leave, sick leave, long service leave or any other kind of leave, superannuation guarantee payments or any obligations arising under an industrial award in relation to the provision of Service under this Agreement.
15.1 The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right to claim damages for breach of that obligation, nor is it a waiver of its right or claim to require performance of that or any other obligation under this Agreement.
15.2 A waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of that provision or right, and is effective only to the extent set out in any written waiver.
16. SUBCONTRACTING AND ASSIGNMENT
FITOUT BUILDERS may assign or attempt to assign, charge or encumber any rights under the Agreement without the Registered Builder’s written consent.
17. VARIATIONS TO AGREEMENT
FITOUT BUILDERS may modify, alter, change or vary any term or condition of this Agreement provided that:
- (a) any variation is published on the Website, and notified to the Registered Builder in writing;
- (b) any variation relating to a fee shall only come into effect in respect of the Registered Builder if:
- (i) the Registered Builder does not notify FITOUT BUILDERS that it objects to the variation within 7 days of being notified in writing; and
- (ii) the variation is intended to apply to the agreements between FITOUT BUILDERS and all Registered Builders.
- (c) Any variation relating to obligations imposed on a Quoting Builder or Preferred Builder in respect of a Client, shall not apply until the Registered Builder ceases to be a Quoting Builder or Preferred Builder in respect of the Client.
The provisions of this Agreement will be deemed to be severable and any invalidity of any provision of this Agreement will not affect the validity of the remaining provisions of this Agreement.
19. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and there are no other oral undertakings, warranties or agreements between the parties relating to the subject matter of this document and this Agreement is not based upon any representations as to profit or worth nor has any representation been made (whether by this Agreement or otherwise) to induce a party to accept and execute this Agreement.
20. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the State of Victoria and the parties shall submit to the non-exclusive jurisdiction of the courts of that State in respect of any dispute of any nature whatsoever arising under this Agreement or its implementation or enforcement.
21.1 The parties must:
- (a) comply with all Privacy Laws in respect of all Personal Information collected, used, disclosed or otherwise handled by him in the course of or in connection with this Agreement;
- (b) implement appropriate technical and operational processes to protect privacy;
- (c) not do anything or omit to do anything that would constitute a breach by FITOUT BUILDERS of Privacy Law, or will otherwise cause the Registered Builder to breach its obligations under any Privacy Law.
21.2 Without limiting the foregoing, the parties must:
- (a) collect, use, disclose and otherwise deal with Personal Information collected by or on behalf of the other party in the course of or in connection with this Agreement only for the purpose of performing this Agreement;
- (b) comply with all reasonable requests or inquiries made by the other party in relation to the management of Personal Information, or any interferences or alleged interferences with privacy (including investigation by the regulator);
- (c) co-operate with the other to resolve any complaint made under any Privacy Law.
22.1 The Registered Builder grants to FITOUT BUILDERS a security interest in accordance with the terms of this Agreement to secure payment of all and any money due now or in the future by the Registered Builder and performance of all obligations of the Registered Builder under this Agreement.
22.2 FITOUT BUILDERS and the Registered Builder agree that this Agreement establishes a security agreement between the parties for the purposes of section 20(2) of the Personal Property Securities Act 2009 (Cth).
22.3 The Registered Builder agrees that it must do all things and sign all documents required by the FITOUT BUILDERS to enable FITOUT BUILDERS to register and maintain (including renew before expiry) one or more financing statements in relation to any security interest in the Registered Builder’s personal property created by this Agreement.
22.4 The Registered Builder must not sell, assign or otherwise dispose of its collateral except in the ordinary course of its business or with the consent of FITOUT BUILDERS. For the avoidance of doubt, the Registered Builder must immediately advise FITOUT BUILDERS if any other party seizes, retains or disposes of or proposes or attempts to seize, retain or dispose of any collateral.
22.5 On the happening of any of the events referred to in clause 12.1(g) or default by the Registered Builder of its obligations, FITOUT BUILDERS or its appointed representatives, may without notice, liability or legal process, enter the Registered Builder’s premises (if required) and may seize, use, remove, sell, assign, transfer or otherwise deal with the collateral in satisfaction of the amounts and obligations secured.
22.6 The Registered Builder agrees that the security interests in this Agreement secure FITOUT BUILDERS’s reasonable costs and expenses in relation to the enforcement of its security interests including (but not limited to) costs and expenses of seizing, protecting, maintaining and removing collateral from the Registered Builder’s premises (if required) and FITOUT BUILDERS’s legal costs on a full indemnity basis.
22.7 FITOUT BUILDERS and the Registered Builder agree that, to the extent permitted by law and in respect of each security interest created under this Agreement:
- (a) The FITOUT BUILDERS and the Registered Builder contract out of:
- (i) the FITOUT BUILDERS and the Registered Builder contract out of:
- (A) dispose or retain personal property under section 125 of the PPSA;
- (B) include details of amounts paid to other secured parties in a statement of account under section 132(3)(d) of the PPSA; and
- (C) give notice of its proposal to retain collateral under section 135 of the PPSA; and
- (ii) section 142 and 143 of the PPSA;
- (b) FITOUT BUILDERS and the Registered Builder contract out of the Registered Builder’s right to (and the borrower waives its right to):
- (i) receive notice of the removal of an accession pursuant to section 95 of the PPSA;
- (ii) receive notice of the decision of FITOUT BUILDERS to enforce any security interest in accordance with land law decisions under section 118 of the PPSA;
- (iii) receive notice of an action of FITOUT BUILDERS to enforce any security interest in liquid assets under section 121(4) of the PPSA;
- (iv) receive notice of FITOUT BUILDERS’s proposal to dispose of personal property under section 130 of the PPSA;
- (v) receive a statement of account under section 132(4) of the PPSA; and
- (vi) receive a verification statement under section 157 of the PPSA; and
- (c) FITOUT BUILDERS and the Registered Builder contract out of the application of part 4.3 of the PPSA (other than sections 126, 128, 129(1), 133 and 134(1)) if that part would apply by virtue of section 116(2) of the PPSA.
22.8 Where FITOUT BUILDERS has rights and powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights and powers will continue to apply are not limited or excluded (or otherwise adversely affected) by the PPSA.
In this agreement, unless the context otherwise requires:
- Agreement means this agreement including any schedules;
- Building Works means construction work at the Site in relation to which the Client has requested FITOUT BUILDERS to produce the Fitout Documents and seek quotations from Registered Builders.
- Claims includes any claim, action, judgment, arbitration, proceeding, suit, cause of action, defence, set off all demand (including any claim for time or losses) for Liabilities:
- (a) under, arising out of, or in connection with, this Agreement and the Service under this Agreement; or
- (b) under, arising out of, or in connection with, either party’s conduct prior to the date of this Agreement or the negotiations leading to the party’s entry into this Agreement; or
- (c) otherwise at law or in equity including but not limited to, by statute, in tort for negligence or for restitution.
- Confidential Information:
- (a) includes information regarding the business of or used in the business, of either party comprising:
- (i) all Intellectual Property;
- (ii) computer systems, software programs and all Data (and all copies and extracts made of or from such Data);
- (iii) products and moral rights (including rights to apply for protection of those rights);
- (iv) know-how, and intangible assets;
- (v) product development;
- (vi) domain names, business names and logos;
- (vii) marketing, advertising, promotion and distribution materials;
- (viii) individuals and organisations with whom or which the party deals or has potential dealings;
- (ix) clients and potential client lists, identities and contacts;
- (x) clients and potential client financial, business or personal information;
- (xi) research in relation to products, software, markets and clients or potential Clients;
- (xii) proposals, tenders, plans, goals or objectives prepared in respect of clients or potential clients;
- (xiii) the pricing policies, product costings and financial performance of the clients; or
- (xiv) current or future business methods, systems and strategies.
- (b) does not include information which:
- (i) is or becomes public knowledge other than by breach of this Agreement;
- (ii) were in the other party’s possession without restriction prior to FITOUT BUILDERS’s engagement by the Registered Builder; or
- (iii) the other party has independently developed or acquired.
- Fitout Documents means:
- (a) a concept drawing; and
- (b) a document containing:
- (i) a description of the finishes for the fitout as represented in the concept drawing; and/or
- (ii) an estimate of the cost of labour and materials required by the Client to give effect to a fitout in the nature of the concept drawing with the finishes so described.
- Insolvency Event means:
- (a) the Registered Builder is or becomes bankrupt or insolvent or makes an assignment for the benefit of creditors;
- (b) a receiver, receiver and manager or equivalent administrator is appointed over the whole or any substantial part of the undertaking or assets of the Registered Builder;
- (c) an application to wind up the Registered Builder is or has been made, and not been stayed or dismissed within fourteen (14) days of the filing of the notice (excepting where that winding up application has been filed to permit the amalgamation or reconstruction of that company);
- (d) the Registered Builder has entered into any scheme of arrangement, deed of Trust or composition with creditors generally;
- (e) the Registered Builder has become a party to proceedings against the Registered Builder under any provisions of any law relating to bankruptcy, liquidation or insolvency.
- Information means information about the Site, or the business or business requirements of the Client, including notes, plans, drawings and all other such other information provided by the Client.
- Insurance Policy means insurance capable of insuring the interests of the Client in respect of:
- (a) any design of the Building Work by the Registered Builder (Professional Indemnity Insurance);
- (b) any injury or illness, disease or death of any person occurring directly as a result of carrying out of the Building Work (Public Liability Insurance).
- Intellectual Property includes all copyright, and all neighbouring rights, all rights in relation to inventions, discoveries, improvements, innovations including patent rights, registered and unregistered trade marks (including service marks), registered and unregistered designs, Trade Secrets, moral rights and all other rights resulting from intellectual activities in the industrial, scientific, literary, music, dramatic or artistic fields.
- Latent Conditions means any physical condition on, underlying or adjacent to the Site which a competent person in the position of FITOUT BUILDERS, with the skills and experience of FITOUT BUILDERS, would not be able to identify having examined the Information or inspected the Site prior to the preparation of the Fitout Documents without the engagement of a specialist third party consultant.
- Liabilities includes all liabilities (whether actual, contingent or prospective), losses, damages, costs, expenses and penalties of whatever description.
- Official Purpose means the purpose of providing a Quotation to a Client.
- Personal Information has the meaning given in the Privacy Act 1988 (Cth), and includes the personal information of:
- (a) the directors, employees or contractors of FITOUT BUILDERS and the Registered Builder;
- (b) Registered Builders of FITOUT BUILDERS or the Registered Builder; or
- (c) the directors, employees or contractors of Registered Builders of the Registered Builder.
- Quoting Builder means, in respect of a Client, a Registered Builder that is invited via the Website to provide a Quotation for Building Work.
- Quotations means a document prepared for consideration of the Client by the Registered Builder containing an estimate of the price to build in accordance with the Fitout Documents.
- Preferred Builder means, in respect of a Client, a Registered Builder that is selected by the Client to negotiate with the Client for a contract to perform the Building Work.
- Privacy Law means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles contained in the Privacy Act) any other applicable law, statute, regulation, ordinance, code, standard or requirement of any government or semi-government body that relates to privacy.
- Registered Builder means the person, partnership, organisation, trust, company or any other entity that is duly registered or licensed to perform building work under the provisions of the relevant legislation applicable to building work the State or Territory in which the Site is located and whom has accepted these terms and conditions, by way of registration on the Website.
- Software means any computer program designed, developed, tested, deployed, maintained or supported by FITOUT BUILDERS, including without limitation, the FITOUT BUILDERS Software, and used in connection with the Service.
- Trade Secrets means all secret processes, formulae and technical information possessed or developed or acquired by either party (other than from the other party) prior to and during the term of this Agreement.
- Termination means the end of the Agreement, howsoever arising, including a termination initiated by a party (including pursuant to clause 12), the expiry of the term or the effluxion of the time.
- Service means the:
- (a) disclosure of Fitout Documents and Information in respect of Clients proposed Building Works via the Website to the Registered Builder who is a Quoting Builder in accordance with this Agreement;
- (b) arranging Site visits by the Registered Builder who is a Quoting Builder in accordance with this Agreement;
- (c) communicating via the Website any Quotation provided by the Registered Builder to the Client in accordance with this Agreement; and
- (d) communicating via the Website a Client’s intention to negotiate a contract for performance of the Building Works with the ; and includes any activity which is necessary and incidental thereto;
- Site means the premises in respect of which the Client intends to complete the Building Work, and which is reflected in the Fitout Documents.
- Site-Related Issues means:
- (a) licenses, consent, permissions, authorisations, permits or contracts relating to the carrying out Building Work;
- (b) any matter affecting title, ownership or possession of the Site;
- (c) any existing structures, fixtures or materials on the Site either at or before commencement of the Building Works, or the removal of such structures and fixtures;
- (d) any engineering or other specialist consultant advice is required for the Building Work; and
- (e) any Latent Condition.
In this agreement, unless the context otherwise requires:
- (a) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
- (b) the singular includes the plural and vice versa;
- (c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
- (d) a reference to any gender includes all genders;
- (e) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure, or exhibit of or to this agreement;
- (f) a recital, schedule, annexure or a description of the parties forms part of this agreement;
- (g) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
- (h) a reference to any party to this agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes, successors and permitted assigns;
- (i) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- (j) a reference to a bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in s 9 of the Corporations Law), being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction, and to the procedures, circumstances and events which constitute any of those conditions or matters;
- (k) where an expression is defined anywhere in this agreement, it has the same meaning throughout.
24. DISPUTE RESOLUTION PROCESS
A party may notify the other party to the Agreement of a dispute about a matter relating to this Agreement, in writing.
The parties must meet to discuss the dispute within 7 days of a dispute being notified.
If the meeting does not resolve the dispute, then either party may elect by notice in writing to the other party to submit the dispute to mediation.
A mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement, or failing agreement, by a person appointed by the Chair of the Resolution Institute (Level 2, 13-15 Bridge Street, Sydney, NSW 2000).
It is a condition precedent to the right of either party to commence litigation other than for interlocutory relief that it the dispute has been submitted to mediation.