Terms and Conditions
RECITALS
A. The Client has requested Plus Systems to provide the Services.
B. Plus Systems has offered to provide the Services on the terms and conditions of this Contract.
The Client has accepted the Plus Systems (henceforth referred to as PS) offer to provide the Services as an independent contractor and has paid Plus Systems the price for inspection/services in accordance with the Contract.
OPERATIVE PROVISIONS
1. DOCUMENTS THAT TOGETHER FORM THE CONTRACT
1.1. The Contract is comprised of (these Terms and Conditions):
2. COMMENCEMENT of the services
2.1. The parties must each nominate its Authorised Representative within 48 hours of entering into the Contract. The Authorised Representative may make binding commitments on behalf of that party and is the person to whom all notices under the Contract must be provided in accordance with the Contract.
2.2. The Client must notify PS in writing at least 48 hours before the time that it requires PS to perform any part of the Services (the Notice to Attend) and all relevant information, data, documents and written authorisation (if necessary) required for PS to liaise with third parties for the purposes of the Contract.
2.3. Upon receipt of the Notice to Attend, PS shall send to the Client a questionnaire relating to the building works to be inspected (the Check-list). The Client must, within 24 hours of receipt of the Check-list, complete and return to PS the Check-list. If the Client does not return the Check-list within 24 hours of receipt, the date for attending the site stated in the Notice to Attend will be deemed to be extended by the number of days that the Client delays the provision of the Check-list.
2.4. Upon attending the site, if PS ascertains that building is not ready for PS to perform the Services, PS will inform the Client as to why it is unable to perform the Services at that time and leave the site. In this instance, there will be no refund due on payable to the client.
3. VARIATIONS
3.1. The Client's Authorised Representative may issue to PS a written notice (Variation Notice) to alter, amend, omit, add to or otherwise vary the Services (the Variation) but only in relation to services that are the same as or similar to the Services subject to the parties agreement as to the Fee increase or decrease for the performance of the Variation.
3.2. Within 2 days of receipt of a Variation Notice by PS’s Authorised Representative, and before PS carries out the Variation, PS must give the Client a detailed breakdown of any proposed increase or decrease in the Contract Price as a result of the Variation. If the Client instructs PS to proceed but does not expressly state that it has accepted the proposed increase or decrease in the Contract Price, the Client will be deemed to have accepted the proposed increase or decrease in the Contract Price.
3.3. PS may by written notice to the Client request a variation in any aspect of the Services. If the Client in its absolute discretion agrees with PS’s proposal, the Client will issue a Variation Notice to PS in accordance with the above provisions.
4. THE CONTRACT PRICE and Expenses
4.1. The Client must pay to PS the Contract Price and expenses incurred in performing the Services as well as any additional amounts due to the performance of a variation under clause 3 above.
4.2. PS may require a deposit, to be paid 48 hours in advance of PS’s performance of the Services. The amount of the deposit is set out in Item 11 of the Schedule.
5. Payment Terms
6. Warranties and Guarantees
6.1. At all material times, PS will hold current Queensland Building and Construction Commission (the QBCC) licenses for Passive Fire Protection – Fire Collars, Penetrations and Joint Sealing, Passive Fire Protection – Fire and Smoke Walls and Ceilings, and Passive Fire Protection - Fire Doors and Shutters.
6.2. PS will deliver the Services to the Client:
6.2.1. in accordance with the Contract; and
6.2.2. in compliance with all applicable laws in respect of the Services including the National Construction Code.
6.3. Other than any warranties or guarantees set out in these terms or which the Client may be entitled to pursuant to the Australian Consumer Law or any other law, all other warranties and guarantees that may be implied in relation to the Services are specifically excluded.
6.4. The Client indemnifies PS on a continuing basis in respect of any breach by it of the Contract.
7. Confidentiality
7.1. The parties recognise that it may be necessary during the engagement to reveal Confidential Information to each other. Each party agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which they have obtained, except as authorised by the other party or as required by law and will undertake reasonable commercial measures to maintain the confidential nature of the Confidential Information, including the signing of reasonable non-disclosure agreements by personnel of either party on request.
7.2. This clause survives termination of this Contract.
8. Limitation of Liability and Indemnity
8.1. In the event that the Client believes the Services are defective, the Client must notify PS of the defect within 48 hours of becoming aware of that defect (the Notice of Defect).
8.2. Within 48 hours of receipt of a Notice of Defect, PS must attend the site, inspect the purported defect and advise the Client how it intends to remedy the defect.
8.3. PS has no liability for any consequential loss or damage, including loss of business profits or reputational damage under this Contract.
8.4. PS’s liability to the Client (including for negligence, loss or damage, including loss or damage) will be limited to the maximum value payable to PS under this Contract.
8.5. Clause 8.4 does not apply to any liability of PS where PS is paid or indemnified, or is entitled to be paid or indemnified, for the liability by an insurer under an insurance policy required by this Contract in which case PS's liability shall be limited to the maximum amount of insurance required under this Contract in respect of that insurance policy.
9. Insurance
9.1. Throughout the course of the performance of the Services, PS will hold policies of insurance in respect of;
9.1.1. professional indemnity up to a limit of $10,000,000; and
9.1.2. public liability up to a limit of $20,000,000 per claim
9.2. Copies of certificates of insurance will be provided on request.
10. Termination
10.1. PS may terminate this Contract immediately on written notice served on the Client:
10.1.1. if the Client engages in conduct which PS reasonably considers to be illegal, dishonest or which may otherwise jeopardise PS’s reputation or business;
10.1.2. if the Client breaches a term of this Contract and fails to remedy the breach within 7 days after having received PS’s written notice; or
10.1.3. if an Insolvency Event occurs in relation to the Client.
10.2. If this Contract is terminated, all PS’s rights in relation to payment for Services completed up to the date of the termination continue as if there has been no termination.
11. Refunds
11.1. If the Contract is terminated by PS or by mutual consent of the parties prior to commencement of the Services, PS shall refund all pre-payments made by the Client under the Contract.
12. Dispute Resolution
12.1. If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.
12.2. The party claiming the dispute must first notify the other party in writing (the Notice of Dispute) of the following:
12.2.1. the nature of the dispute;
12.2.2. the outcome they desire to resolve the dispute, and
12.2.3. the action they believe will settle the dispute.
12.3. On receipt of the notice by the other party, both parties will use their best endeavours to resolve the dispute.
12.4. If the parties are unable to resolve the dispute within 20 Business Days of the Notice of Dispute, the parties must jointly select a mediator within 5 Business Days. If the parties are unable to agree upon a suitable mediator, either party may request the President of the Law Society of Queensland appoint a mediator and the President’s decision shall be binding upon the parties.
12.5. The parties will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance).
12.6. The parties must each pay their own costs associated with the mediation, which must be held in Brisbane, Queensland.
12.7. This clause survives termination of this Contract.
13. General
13.1. PS may sub-contract any part of the Services, provided always that PS will be responsible for the Services in accordance with the Contract.
13.2. The parties acknowledge that these terms are intended as an agreement for the provision of services and creates the relationship of principal and independent contractor and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
13.3. The Contract referred to above in clause 1 is the entire agreement between the parties on everything connected with the Services and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the Services.
13.4. If anything in this Contract is unenforceable, illegal or void, it is deemed to have been severed at the time of execution of this Contract the rest of the Contract remains in force.
13.5. A waiver by either party to a term of this Contract is not a waiver of a subsequent breach of the same term.
13.6. Any amendment or variation to these terms is not effective unless it is agreed in writing by both parties (including via email), unless otherwise set out in these Terms.
13.7. The law of Queensland governs the Contract and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
13.8. A notice required to be given to a party under these terms must be in writing and delivered to that party in one of the following ways:
13.8.1. delivered personally;
13.8.2. posted to their address, when it will be treated as having been received on the second Business Day after posting; or
13.8.3. sent by email to their last-notified email address, when it will be treated as received when it enters the recipient’s information system or otherwise when the recipient confirms receipt, whichever occurs first.
14. Definitions
14.1. The terms in this clause have the following meanings, unless the context indicates otherwise:
14.1.1. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
14.1.2. Business Day means a day on which banks are open for business in Brisbane, other than a Saturday, Sunday or public holiday.
14.1.3. Confidential Information refers to any data or information relating to PS or the Client, whether business or personal, written or oral and regardless of how or when it was provided to the other party, which would reasonably be considered to be private or proprietary to PS or the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to PS or the Client, and includes the terms of this Agreement (except to the extent that disclosure of the terms is necessary for the purpose of legal or financial advice).
14.1.4. Insolvency Event includes any event which indicates that the party in question is unable to pay their debts as they fall due, including any of the following events:
14.1.4.1. becoming unable to pay debts as they fall due;
14.1.4.2. an act of bankruptcy;
14.1.4.3. enter into a composition or arrangement with creditors;
14.1.4.4. execution levied by creditors, debenture holders or trustees under a floating charge;
14.1.4.5. institution of any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in winding up (except for the purposes of reconstruction);
14.1.4.6. making of a winding up order; and
14.1.4.7. appointment of an official manager, receiver, receiver/manager, provisional liquidator or liquidator,
14.1.4.8. but does not include a transfer of ownership.
14.1.4.8.1. Intellectual Property means any works or materials in which Intellectual Property Rights subsist, including any checklists prepared by PS for use on site by trades.
14.1.4.8.2. Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration, and all digital and electronic rights.
14.1.5. Services means the services set out in the Schedule.