OVERVIEW 
This website is operated by Provenair. Throughout the site, the terms “we”, “us” and “our” refer to Provenair. Provenair offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here. 

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content. 

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service. 

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes. 

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you. 

SECTION 1 - ONLINE STORE TERMS 
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site. 
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). 
You must not transmit any worms or viruses or any code of a destructive nature. 
A breach or violation of any of the Terms will result in an immediate termination of your Services. 

SECTION 2 - GENERAL CONDITIONS 
We reserve the right to refuse service to anyone for any reason at any time. 
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks. 
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us. 
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms. 

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION 
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk. 
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site. 

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES 
Prices for our products are subject to change without notice. 
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. 
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service. 

SECTION 5 - PRODUCTS OR SERVICES (if applicable) 
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy. 
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate. 
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. 
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected. 

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION 
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. 

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. 

For more detail, please review our Returns Policy. 

SECTION 7 - OPTIONAL TOOLS 
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. 
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. 
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s). 
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service. 

SECTION 8 - THIRD-PARTY LINKS 
Certain content, products and services available via our Service may include materials from third-parties. 
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. 
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party. 

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS 
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments. 
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service. 
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party. 

SECTION 10 - PERSONAL INFORMATION 
Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy. 

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS 
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). 
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated. 

SECTION 12 - PROHIBITED USES 
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses. 

SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY 
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free. 
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable. 
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you. 
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement. 
In no case shall Provenair, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law. 

SECTION 14 - INDEMNIFICATION 
You agree to indemnify, defend and hold harmless Provenair and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party. 

SECTION 15 - SEVERABILITY 
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions. 

SECTION 16 - TERMINATION 
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes. 
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site. 
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof). 

SECTION 17 - ENTIRE AGREEMENT 
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. 
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). 
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party. 

SECTION 18 - GOVERNING LAW 
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of Australia. 

SECTION 19 - CHANGES TO TERMS OF SERVICE 
You can review the most current version of the Terms of Service at any time at this page. 
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 - $0-$5,000 TERMS AND CONDITIONS

1. Definitions
1.1 “Proven” means Proven Air Pty Ltd T/A Proven Air Conditioning, its
successors and assigns or any person acting on behalf of and with the
authority of Proven Air Pty Ltd T/A Proven Air Conditioning.
1.2 “Client” means the persons buying the Goods as specified in any invoice,
document or order, and if there is more than one Client is a reference to
each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Proven to the Client at
the Client’s request from time to time (where the context so permits the
terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Order” means the Order on these Terms & Conditions of Trade.
1.5 “Price” means the Price payable for the Goods as agreed between Proven
and the Client in accordance with clause 4 below.
1.6 “Terms & Conditions of Trade” means these terms between Proven and
Client being the only terms that apply and supersede any other discussion,
reference or agreement. Client terms and conditions are superseded by
these Terms & Conditions of Trade.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound,
jointly and severally, by these Terms & Conditions of Trade if the Client
places an Order for or accepts delivery of the Goods.
2.2 These Terms & Conditions of Trade may only be amended with Proven’s
consent in writing and shall prevail to the extent of any inconsistency with
any other document or agreement between the Client and Proven.
2.3 The Client acknowledges and agrees that:
(a) Proven shall not be liable for the cost involved in making good any
(including but not limited to, painting, gyprocking or rendering work)
resulting from damage caused in the course of Proven’s Services
(unless due to the negligence of Proven; and
(b) the organisation of, and any cost involved in the removal of rubbish
(including, but not limited to, broken pipes, rocks , flora and soil) that
is created by the Services shall be the Client’s responsibility;
(c) Proven will not be held liable for any condensate drainage caused by
the air conditioner unless it has been decided the issue was caused
by Proven's negligence;
(d) there are particular site conditions (including, but not limited to,
positioning of underground electrical cabling) that can cause
blockage location devices to pinpoint erroneous locations. The Client
agrees they shall indemnify Proven against all additional costs
incurred due to inaccurate readings; and;
(e) Proven Air is preparing to perform necessary work to your Air
Conditioner. This is most likely because it requires ongoing
maintenance and/or repairs to keep it functioning properly. The
recommended work to be carried out is the result of the technician
completing an assessment of the current condition of your system
and: A maintenance on a system will keep the system in good and
clean condition, improving efficiency and expanding its lifespan - if
there is a fault somewhere in the system, it will not fix this issue. If a
component/part/section of the system is faulty and should be
repaired, once the initial work has been completed there is a chance
that another item could also be faulty or not working to its full
potential, this could require further testing and repairs which will be
charged for. In the event that the initial repairs/maintenance don’t get
the system working to its desired level, Proven will charge for further
testing and/or further repairs. Ask your technician for the best advice
on whether the system should be maintained and/or repaired, or if
the money would be better invested in a replacement. Proven is here
to provide the best professional knowledge on each air conditioner
that is encountered, without paying for unnecessary work.
3. Price and Payment
3.1 At Proven’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Proven to the Client; or
(b) Proven’s quoted price (subject to clause 4.2) which will be valid for
the period stated in the quotation or otherwise for a period of thirty
(30) days.
3.2 Proven reserves the right to change the Price if a variation to Proven’s
quotation is requested. All variations will be charged for on the basis of
Proven’s quotation and will be shown as variations on the invoice. Payment
for all variations must be made in full at their time of completion. Any
variation from the plan of scheduled works or specifications, includes, but is
not limited to, any variation as a result of additional works required due to:
(a) hidden or unidentifiable difficulties such as hard rock barriers below
the surface or iron reinforcing rods in concrete, or
(b) repairs that are required that are located in difficult to access
positions or that hinder Proven’s Services, or
(c) due to any additional unquoted electrical works being required, or
(d) as a result of increases to Proven in the cost of materials and labour;
or
(e) any timbering and shoring required due to Work Health and Safety
(WHS) requirements resulting from ground subsidence; or
(f) any additional Health and Safety (WHS) requirements created by
particular conditions on site.
3.3 At Proven’s sole discretion a non-refundable deposit may be required.
3.4 Time for payment for the Goods being of the essence, the Price will be
payable by the Client on the date/s determined by Proven, which may be:
(a) the date specified on any invoice or other form as being the date for
payment, or
(b) failing any notice to the contrary, the date which is seven (7) calendar
days following the date of any invoice given to the Client by Proven.
3.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line
banking, credit card (plus a surcharge of up to five percent (5%) of the
Price), or by any other method as agreed to between the Client and Proven.
3.6 Unless otherwise stated the Price does not include GST. In addition to the
Price the Client must pay to Proven an amount equal to any GST Proven
must pay for any supply by Proven under this or any other agreement for
the sale of the Goods. The Client must pay GST, without deduction or set
off of any other amounts, at the same time and on the same basis as the
Client pays the Price. For the purposes of the Terms & Conditions of Trade,
the terms “ABN”, “GST”, “GST law”, “registered”, “tax invoice” and “taxable
supply” have the meanings given to them in A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
3.7 In addition the Client must pay any other taxes and duties that may be
applicable in addition to the Price except were they are expressly included
in the Price.
4. Delivery of Goods
4.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that Proven
(or Proven’s nominated carrier) delivers the Goods to the Client’s nominated
address even if the Client is not present at the address.
4.2 At Proven’s sole discretion the cost of delivery is included in the Price.
4.3 The Client must take delivery by receipt or collection of the Goods whenever
they are tendered for delivery. In the event that the Client is unable to take
delivery of the Goods as arranged then Proven shall be entitled to care a
reasonable fee for redelivery and/or storage.
4.4 Proven may deliver the Goods in separate instalment. Each separate
instalment shall be invoiced and paid in accordance with the provisions in
these Terms & Conditions of Trade.
4.5 Any time or date given by Proven to the Client is an estimate only. The
Client must still accept delivery of the Goods even if late and Proven will not
be liable for any loss or damage incurred by the Client as a result of delivery
being late.
5. Risk
5.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and
the Client must insure the Goods on or before Delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to
ownership passing to the Client, Proven is entitled to receive all insurance
proceeds payable for the Goods. The production of these Terms &
Conditions of Trade by Proven is sufficient evidence of Proven’s rights to
receive the insurance proceeds without the need for any person dealing with
Proven to make further enquiries.
5.3 If the Client requests Proven to leave Goods outside Proven’s premises for
collection or to deliver the Goods to an unattended location then such
Goods shall be left at the Client’s sole risk.
5.4 The Client acknowledges and agrees that the presence of plant/tree root
growth and/or blockages generally indicates damaged pipes. Accordingly
the Client agrees that these pipes cannot be fixed by simply removing
plant/tree root growth or cleaning the drain, therefore no warranty is
provided against this situation arising again in the future and in respect of
any work carried out in relation thereto.

6. Access
6.1 The Client shall ensure that Proven as clear and free access to the work
site at all times to enable them to undertake the works. Proven shall not be
liable for any loss or damage to the site (including, without limitation,
damage to pathways, driveways, pavers, concrete, bitumen, tiles,
brickwork, concreted, flora, grassed areas and landscape) unless due to the
negligence of Proven.
7. Client’s Responsibilities
7.1 It is the Client’s responsibility to:
(a) remove all fragile items such as glassware, crockery, pot plants,
furniture and ornaments. Breakages and damages are the
responsibility of the Client. All care taken but no responsibility
accepted by Proven in this regard; and
(b) make the premises available on the agreed date and time. If
installation is interrupted by the failure of the Client to adhere to the
installation schedule agreed to between Proven and the Client, any
additional costs will be invoiced to the Client as an extra.
8. Underground Locations
8.1 Prior to Proven commencing any work the Client must advise Proven of the
precise location of all underground services on the site and clearly mark the
same. The underground mains & services the Client must identify include,
but are not limited to, electrical services, as services, sewer services,
pumping services, sewer connections, sewer sludge mains, water mains,
irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and
any other services that may be on site.
8.2 Whilst Proven will take all care to avoid damage to any underground
services the Client agrees to indemnify Proven in respect of all and any
liability claims, loss, damage, costs and fines as a result of damage to
services not precisely located and notified as per clause 9.1
9. Title
9.1 Proven and the Client agree that ownership of the Goods shall not pass
until:
(a) the Client has paid Proven all amounts owing to Proven; and
(b) the Client has met all of its other obligations to Proven.
9.2 Receipt by Proven of any form of payment other than cash shall not be
deemed to be payment until that form of payment as seen honoured,
cleared and recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with
clause 10.1 that the Client is only a bailee of the Goods and must
return the Goods to Proven on request.
(b) The Client holds the benefit of the Client’s insurance of the Goods
on the trust for Proven and must pay to Proven the proceeds of any
insurance in the event of the Goods being lost, damaged or
destroyed.
(c) the Client must not sell , dispose, or otherwise part with possession
of the Goods other than in the ordinary course of business and for
market value. If the Client sells, disposes or parts with possession of
the Goods then the Client must old the proceeds of any such act on
trust for Proven and must pay or deliver the proceeds to Proven on
demand.
(d) the Client should not convert or process the Goods or intermix them
with other goods but if the Client does so then the Client holds the
resulting product on trust for the benefit of Proven and must sell,
dispose of or return the resulting product to Proven as it so directs.
(e) the Client irrevocably authorises Proven to enter any premises where
Proven believes the Goods are kept and recover possession of the
Goods.
(f) Proven may recover possession of any Goods in transit whether or
not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods
nor grant nor otherwise give away any interest in the Goods while
they remain the property of Proven.
(h) Proven may commence proceedings to recover the Price of the
Goods sold notwithstanding that ownership of the Goods has not
passed to the Client.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010
(CCA)
10.1 The Client must inspect the Goods on delivery and must within seven (7)
calendar days of delivery notify Proven in writing of any evident
defect/damage, shortage in quantity, or failure to comply with the
description or quote. The Client must notify any other alleged defect in the
Goods as soon as reasonably possible after any such defect becomes
evident. Upon such notification the Client must allow Proven to inspect the
Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including,
without limitation the CCA), certain statutory implied guarantees and
warranties (including, without limitation the statutory guarantees under the
CCA) may be implied into these Terms & Conditions of Trade (NonExcluded Guarantees).
10.3 Proven acknowledges that nothing in these Terms & Conditions of Trade
purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these Terms & Conditions of Trade or in
respect of the Non-Excluded Guarantees, Proven makes no warranties or
other representations under these Terms & Conditions of Trade including
but not limited to the quality or suitability of the Goods. Proven’s liability in
respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, Proven’s liability
is limited to the extent permitted by section 64A of Schedule 2.
10.6 If Proven is required to replace the Goods under this clause or the CCA, but
is unable to do so, Proven may refund any money the Client has paid for
the Goods.
10.7 If the Client is not a consumer within the meaning of the CCA, Proven’s
liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card
provided to the Client by Proven at Proven’s sole discretion;
(b) limited to any warranty to which Proven is entitled, if Proven did not
manufacture the Goods;
(c) otherwise negated absolutely.
10.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) Proven has agreed that the Goods are defective; and
(c) The Goods are returned within (30) calendar days a reasonable time
at the Client’s cost (if that cost is not significant); and
(d) The Goods are returned in as close a condition to that in which they
were delivered as is possible.
10.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Proven shall
not be liable for any defect or damage which may be caused or partly
caused by or arise as a result of:
(a) The Client failing to properly maintain or store any Goods;
(b) The Client using the Goods for any purpose other than that for which
they were designed;
(c) The Client continuing the use of any Goods after any defect became
apparent or should have become apparent to a reasonably prudent
operator or user,
(d) The Client failing to follow any instructions or guidelines provided by
Proven;
(e) Fair wear and tear, any accident, or act of God.
10.10 Proven may in its absolute discretion accept non-defective Goods for return
in which case Proven may require the Client to pay handling fees of up to
forty-five percent (45%) of the value of the returned Goods plus any freight
costs.
10.11 Notwithstanding anything contained in this clause if Proven is required by a
law to accept a return then Proven will only accept a return on the conditions
imposed by that law.
11. Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment
becomes due, until the date of payment, at a rate of two and a half percent
(2.5%) per calendar month (and at Proven’s sole discretion such interest
shall compound monthly at such a rate) after as well as before any
judgement.
11.2 If the Client owes Proven any money the Client shall indemnify Proven from
and against all costs and disbursements incurred by Proven in recovering
the debt (including but not limited to internal administration fees, legal costs
on a solicitor and client basis, Proven’s contract default fee, and bank
dishonor fees).
11.3 Without prejudice to any other remedies Proven may have, if at any time
the Client is in breach of any Obligation (including those relating to payment)
under these Terms & Conditions of Trade Proven may suspend or terminate
the supply of Goods to the Client. Proven will not be liable to the Client for
any loss or damage the Client for any loss or damage the Client suffers
because Proven has exercised its right under this clause.
11.4 Without prejudice to Proven’s other remedies at law Proven shall be entitled
to cancel all or any part of any Order of the Client which remains unfulfilled

and all amounts owing to Proven shall, whether or not due to payment,
become immediately payable if;
(a) Any money payable to Proven becomes overdue, or in Proven’s
opinion the Client will be unable to make a payment when it falls due;
(b) The Client becomes insolvent, convenes a meeting with its creditors
or proposes or enters into an agreement with creditors, or makes an
assignment for the benefit of its creditors; or
(c) A receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Client or any asset of the Client.
12. Limitation of Liability
To the maximum extent permitted by law, the Client agrees that Proven will
not be liable to the Client (including any person claiming through or under the
Client or any occupier or subsequent owner or occupier of the Land or any
part of it), and will be deemed to be released and discharged by the Client
from all liability to the Client, for: any amount due to the Client under the Terms
& Conditions of Trade; any breach (including any Substantial Breach) of the
Terms & Conditions of Trade by Proven; any breach of a warranty by Proven
under the Terms & Conditions of Trade, or under any statute or other law or
legal requirement which permits the parties to exclude, restrict or modify
liability for breach of the warranty; any tort (including negligence) arising out
of, or otherwise in connection with, any act or omission of the Contractor in
respect of the Order or the Terms & Conditions of Trade; any guarantee given
to the Client by Proven under the Terms & Conditions of Trade, or under any
statute or other law or legal requirement which permits the parties to exclude,
restrict or modify liability in respect of the guarantee; and any equitable or
statutory relief arising out of, or otherwise in connection with, any act or
omission of Proven in respect of the Order or the Terms & Conditions of Trade.
13. Dispute Resolution
13.1 If a dispute arises between the parties to this contract then either party shall
send to the other party a notice of dispute in writing adequately identifying
and providing details of the dispute. Within fourteen (14) calendar days after
service of a notice of dispute, the parties shall confer at least once, to
attempt to resolve the dispute. At any such conference each party shall be
represented by a person having authority to agree to a resolution of the
dispute. In the event that the dispute cannot be so resolved either part may
be further notice writing delivered by hand or sent by certified mail to the
other party refer such dispute to arbitration. Any arbitration shall be:
(a) Referred to a single arbitrator to be nominated by the President of
the Institute of Arbitrators Australia; and
(b) Conducted in accordance with the Institute of Arbitrators Rules for
the Conduct of Commercial Arbitration.
13.2 Neither party may commence legal proceedings in relation to a dispute
unless the parties have undertaken the processes set out above and those
processes have failed to resolve the dispute, or one of the parties attempted
to follow these processes and the other party has failed to participate.
14. Compliance with Laws
14.1 The Client and Proven shall comply with the provisions of all statutes,
regulations and bylaws of government, local and other public authorities that
may be applicable to the Services.
14.2 The Client shall obtain (at the expense of the Client) all licenses and
approves that may be required for the Services.
14.3 Jurisdiction of these Terms & Conditions of Trade shall be Burwood Court
House New South Wales.
14.4 The Client agrees that the site will comply with any work health and safety
(WHS) laws relating to building/construction sites and any other relevant
safety standards or legislation.
15. Cancellation
15.1 Proven may cancel any contract to which these Terms & Conditions of
Trade apply or cancel delivery of Goods at any time before the Goods are
delivered by giving written notice to the Client. On giving such notice,
Proven shall repay to the Client any money paid by the Client for the Goods.
Proven shall not be liable for any loss or damage whatsoever arising from
such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be
liable for any and all loss incurred (whether direct or indirect) by Proven as
a direct result of the cancellation (including, but not limited to the 10%
deposit for materials and any loss of profits).
15.3 Cancellation of Orders for the Goods made to the Client’s specifications, or
for non-stocklist items, will definitely not be accepted once production has
commenced, or an Order has been placed.
16. Privacy Act 1988
16.1 The Client agrees for the Proven to obtain from a credit reporting body
(CRB) a credit report containing personal credit information (e.g. name,
address, D.O.B, occupation, previous credit applications, credit history)
about the Client in relation to credit provided by the Proven.
17. Building and Construction Industry Security of Payments Act 1999.
17.1 At Proven’s sole discretion, if there are any disputes or claims for unpaid
Goods and/or Services then the provisions of the Building and Construction
Industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the effect of contracting out
of any applicable provisions of the Building and Construction Industry
Security of Payments Act 1999 of New South Wales, except to the extent
permitted by the Act where applicable.
18. General
18.1 The failure by Proven to enforce any provisions of these Terms & Conditions
of Trade shall not be treated as a waiver of that provision, nor shall it affect
Proven’s right to subsequently enforce that provision. If any provision of
these Terms & Conditions of Trade shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.
18.2 The parties acknowledge that the terms of their agreement are fully set out
in the Terms & Conditions of Trade, and constitute the entire agreement
18.3 If there is more than one person named as the Client under the Terms &
Conditions of Trade, their obligations and liabilities are joint and several.
18.4 These Terms & Conditions of Trade and any contract to which they apply
shall be governed by the laws of New South Wales in which Proven has its
principal place of business, and are subject to the jurisdiction of the
Burwood Court House in New South Wales.
18.5 Subject to clause 13, Proven shall be under no liability whatsoever to the
Client for any indirect and/or consequential loss and/or expense (including
loss of profit) suffered by the Client arising out of a breach by Proven of
these Terms & Conditions of Trade (alternatively Proven’s liability shall be
limited to damages which under no circumstances shall exceed the Price of
the Goods).
18.6 The Client shall not be entitled to set off against, or deduct from the Price,
any sums owed or claimed to be owed to the Client by Proven nor to
withhold payment of any invoice because part of that invoices is in dispute.
18.7 Proven may license or sub-contract all or any part of its rights and
obligations without the Client’s consent.
18.8 The Client agrees that Proven may amend these Terms & Conditions of
Trade at any time. If Proven makes a change to these Terms & Conditions
of Trade, then that change will take effect from the date on which Proven
notifies the Client of such change. The Client will be taken to have accepted
such changes if the Client makes a further request for Proven to provide
Goods to the Client.
18.9 Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock-out, industrial action, fire, flood, storm or other even
beyond the reasonable control of either party.
18.10 The Client warrants that it has the power to enter into its agreement and
has obtained all necessary authorisations to allow it to do so, it is not
insolvent and that this agreement creates binding and valid legal obligations

 

SECTION 21 - $5,000-$19,999 TERMS AND CONDITIONS

1. Definitions
1.1 “Contractor” shall mean this Contract or Agreement.
1.2 “Contractor” shall mean Proven Air T/A Proven Air
Conditioning.
1.3 “Contract Price” shall mean the price of the Works as
agreed between the Contractor and the Owner.
1.4 “Home Building Act” means the Home Building Act
1989 and includes any amendments from time to time).
1.5 “Materials” shall mean Materials supplied by the
Contractor that are required in order complete the
Works
1.6 “Owner” or “Residential Owner” shall mean the
Owner or any person acting on behalf of and with the
authority of the Owner
1.7 “Prime Cost Item” shall mean an item that either has
not been selected, or whose price is not known, at the
time this contract is entered into and for the cost of
supply and delivery of which the Contractor must take
a reasonable allowance in the contract. (Applicable
only if appendix attached).
1.8 “Provisional Sum” shall mean an estimate of the cost
of carrying out particular Works under this contract for
the which the Contractor, after making all reasonable
inquiries, cannot give a definite price at the time this
contract is entered into.
1.9 “Security Monies” means the amount of the Contract
Price that is payable under this contract for the Works
which is to be provided by the Owner personally and
which is not subject to provision by way of a loan from
a financial institution.
1.10 “Works” shall mean the Works as described in the
Description of Works in this Contract. Where the
context so permits the terms ‘Works’ or ‘Materials’ shall
be interchangeable for each other.
1.11 “Worksite” shall mean the land (or that part of the
land) that the Contractor reasonably needs to occupy
in order to carry out and practically complete the Works
required under this contract.
2. Recitals
2.1 In this contract, unless the context requires:
(a) Plurals. The singular shall include the plural and
vice versa and words importing one gender shall
include every gender and a reference to a
person shall include any other legal entity of
whatsoever kind and vice versa.
(b) Statutory amendments. A reference to a statue,
ordinance, code or other law includes
regulations and other statutory instruments

under it and consolidations, amendments, re-
enactments or replacements of any of them

(whether of the same or any other legislative
authority having jurisdiction).
(c) Joint obligations. An obligation incurred in
favour of two or more parties shall be
enforceable by them jointly and severally.
(d) Parts of contract. References to this contract
including its clauses, schedules, annexures.

(e) Headings. Headings shall be ignored in
construing this document.

3. Variations
3.1 In the event that the Owner requests a variation in the
Contractor will give the Owner a written variation
document detailing the Works, the amended Contract
Price, the estimated time to undertake the variation,
the likely delay to the completion date if any, and shall
require written acceptance by the Owner of the
variation before commencing Works on the variation.
3.2 In the event that the Contractor requests a variation,
the Contractor will, in writing state the reason for the
variation, provide a full description of the variation,
state any effect the variation will have on the contract,
including but not limited to, the Contract Price,
completion date and whether further permits or
authorisations are required, and shall require written
acceptance by the Owner of the variation before
commencing on the variation.
3.3 All variations to this contract (including those to the
plans and specifications) must be in writing, dated and
signed by both parties to the contract.
3.4 The cost of omitted work will be deducted from the
Contract Price. If the varied Contract Price exceeds
$20,000, a certificate of insurance under the Home
Building Compensation Fund must be attached to the
contract or a new contract entered into that complies
with the requirements in the Home Building Act 1989
for contracts over $20,000.
3.5 All variations under this clause shall include an
allowance for Contractor’s overheads and profit.
4. Finance
4.1 If this contract is conditional upon the Owner obtaining
a loan from an Australian financial institution, then they
shall provide the Contractor with written confirmation
of the loan approval by the date specified in Box H
above. Such written confirmation is to include
confirmation from the financial institution that the
Contractor may commence the Works.
4.2 The Owner shall authorise the Owner’s lender to, and
the Owner’s lender may then, pay all monies advanced
to the Owner for payment of the Contract Price of the
Works (or any part thereof) and approved by the
Owner direct to the Contractor.
4.3 In the event any such loan application is declined then
the Owner shall have the right to withdraw from this
contract subject to the Owner providing the Contractor
with written evidence within five (5) working days of the
date specified in Box H above that the loan was
declined. Upon receipt of such evidence the Contractor
shall refund the Owner any deposit paid in accordance
with this Contract.

5. Contract Price and Payment
5.1 Time for payment for the Works shall be of the essence
and will be stated on the progress payment or invoice.
If no time is stated, then payment shall be due seven
(7) days following the date of the progress payment or
invoice.
5.2 Any deposit shall be payable on the day that this
contract is signed by the Owner.
5.3 The Owner shall make progress payments (within five
(5) days of receipt from the Contractor in writing of a
progress claim) for each completed stage of the Works
as stated in this contract. Such payments shall include
any amounts payable for Contract Price adjustments
or variations claimed and not paid prior to each
progress payment. (Applicable only if appendix
attached).
5.4 Payment may be made by cash, cheque, bank cheque,
electronic/online banking, or by any other method as
agreed to between the Owner and the Contractor.
5.5 The Contract Price shall be increased by the amount
of any GST and other taxes and duties which may be
applicable, except to the extent that such taxes are
expressly included in this contract.
6. Security Monies
6.1 The Owner shall, prior to the commencement of any
Works, deposit any Security Monies into an interest
bearing account at a financial institution mutually
agreed between the Owner and the Contractor. The
account must be joint account in the names of both the
Owner and the Contractor and withdrawals shall
require the signature of both of those parties.
6.2 It is agreed that Security Monies shall be used to pay
progress payments to the Contractor before any loan
monies are used to pay progress payments.
6.3 In the event that the Owner fails to pay any Security
Monies due to the Contractor or the Contractor
terminates this contract under the Termination clause
then the Contractor shall be entitled to Security Monies
equivalent to any amount due and owing to the
Contractor after having applied the relevant clauses.
6.4 After payment of the final progress payment to the
Contractor any Security Monies remaining in the
account (including any interest) shall belong to the
Owner (including any interest earned thereon).
7. Provision of the Works
7.1 Subject to this Contract, it is the Contractor’s
responsibility to ensure that the Works commence as
soon as it is reasonably possible.
7.2 Therefore, the Works shall commence within ten (10)
working days of the latest date that the Owner has
complied with the relevant clauses.
(a) A variation being requested by either the Owner
or Contractor,
(b) A calculable delay in excess of the period
allowed for and specified in Box F (but only to
the extent of the actual delay in excess of the
period already allowed);

(c) A force majeure event as defined (but only for
the period that the force majeure event affects
the Works);
(d) Any dispute with adjoining, residents (including
tenants), neighbours, or owners;
(e) Any act, omission, or default of the Owner
(including the failure of the Owner to agree to, or
sign a variation);
(f) Any delay in the supply or manufacture of
Materials required for the Works;
(g) Delays in receiving consent/s and/or approvals
beyond the period specified in the Contract;
(h) Delay by the Owner in making a selection;
(i) A survey is required as per relevant clauses.
7.3 Nothing in this contract shall have the effect of limiting
or preventing the Contractor from claiming more than
one extension of time for a delay specified in relevant
clauses.
7.4 If the Owner disputes any extension of time the Owner
must provide the Contractor with written notification
specifying the reason for the Owner receiving the
Contractor’s time extension request. Lack of advice
from the Owner to the contrary shall mean that the
Owner has accepted the Contractor’s time extension
request.
7.5 The Contractor shall within five (5) working days of
commencement of the Works confirm to the Owner in
writing the actual date that the Works commenced and
the expected date for practical completion.
8. Defects
8.1 The Contractor shall rectify (at the Contractor’s own
expense) any defects or omissions in the Works that
have become apparent within four (4) weeks of the
date that the Owner is advised that the Works have
been completed, provided that the Owner has notified
the Contractor in writing of any such defects or
omissions no later than five (5) business days after the
expiry of that four (4) week period.
8.2 The Contractor shall remedy any defects brought to the
Contractor’s attention under clause 8 within thirty (30)
days of receiving such notification in writing.
9. Owner’s Acknowledgements and Responsibilities
9.1 The Owner acknowledges that:
(a) All descriptive specifications, illustrations,
drawings, data, dimensions and weights stated
in the Contractor’s or the manufacturer’s fact
sheets, price lists or advertising material, are
approximate only and are given by way of
identification only. The Owner shall not be
entitled to rely on such information, and any use
of such does not constitute a sale by description,
and does not form part of the contract, unless
expressly stated as such in writing by the
Contractor,
(b) While the contractor may have provided
information or figures to the Owner regarding the
performance of the Materials, the Owner
acknowledges that the Contractor has given
these in good faith, and are estimates based on


Clean Energy Council (CEC), Water Efficiency
Labelling and standards (WELS) scheme and/or
industry prescribed estimates. The water
efficiency may be less than estimates due to
factors out of the Contractor’s control (including,
but not limited to, water pressure, water source,
the mineral content of water based on
geographical location, etc)
9.2 It is the Owner’s responsibility to:
(a) Provide the Contractor with any information,
including location and dimensions of fittings, in
a timely manner in order to facilitate the
provision of the Works;
(b) Ensure that Materials specified are of the correct
size, type, colour, quality and finish as shown in
specification, drawings or plans;
(c) Supply power to within eight (8) meters of the
Works or any other facility that is required by the
Contractor and communicated with the Owner
shall be the Owner’s responsibility to supply and
shall conform to any applicable statues,
regulations and/or bylaws.

9.3 It is the intention of the Contractor and agreed by the
Owner that:
(a) Any building/construction sites will comply with
all work health and safety (WHS) laws relating
to building/construction sites and any other
relevant safety standards or legislation; and
(b) The Owner shall obtain and pay for all planning
and building approvals required for the Works
prior to commencement of the Works by the
Contractor. In the event that the Contractor
agrees to obtain the approvals then the cost of
those approval shall be the Owner’s
responsibility and shall be in addition to the
Contract Price; and
(c) The Owner shall remove from the Worksite any
furniture, personal effects or other property like
to impede the Contractor in order to minimise
the risk of injury or any damage; and
(d) The Owner shall provide the Contractor with
clear and free access to the Worksite to enable
the Contractor to complete the Works.

10. Contractor’s Responsibilities
10.1 The Contractor shall make good (at the Contractor’s
own expense) any loss or damage to the Works or
property of the Owner caused by the negligence of the
Contractor.
10.2 The Contractor shall provide a quality of construction
that meets or exceeds the standards set in relevant
codes including but not limited to the Environmental
Planning and Assessment Act 1979.
10.3 Contractor’s liability for failure to comply will be limited
if the cause relates solely to:
(a) A design or specification prepared by or on
behalf of the Owner; or
(b) a design or specification required by the Owner
if the Contractor has advised the Owner in
writing that the Owner go against this work
compliance clause.

11. Risk
11.1 For the sake of clarity, the Contractor shall not be liable
for loss or damage to the Works once they have
reached practical completion or if the Owner takes
possession of the Worksite and all risk shall pass to the
Owner as soon as either completion or possession
occurs.
11.2 Notwithstanding clause 11 all works or materials
supplied by the Owner or the Owner’s subcontractors
at or to the Worksite shall be at the sole risk of the
Owner.
11.3 The installation of some appliances can cause water
hammer or damage to existing pipe work. The Owner
agrees to indemnify the Contractor against any such
loss, damage or claim that may arise if the existing pipe
work is unable to accommodate the installation of the
Materials.
11.4 The Owner acknowledges and agree that where the
Contractor has performed temporary repairs that:
(a) The Contractor offers no guarantee against the
reoccurrence of the initial fault, or any further
damage caused; and
(b) The Contractor will immediately advise the
Owner of the fault and shall provide the Owner
with an estimate for the full repair required.
11.5 The Owner acknowledges that the Contractor is only
responsible for parts that are replaced by the
Contractor and does not at any stage accept any
liability in respect of previous services and/or goods
supplied by any other third party that subsequently fail
and found to be the source of the failure, the Owner
agrees to indemnify the Contractor against any loss or
damage to the Materials, or caused by the Materials,
or any part thereof howsoever arising.
11.6 The Owner acknowledges that Materials supplied may:
(a) Fade or change colour over time; and
(b) Expand, contract or distort as a result of
exposure to heat, cold, weather; and
(c) Mark or stain if exposed to certain substances;
and
(d) Be damaged or disfigured by impact or
scratching; and
(e) Create undesirable smells caused by a system
as a result of its normal operation.

11.7 Whilst the final location of the condensing unit is at the
discretion of the Owner, a charge will apply as a
variation as per relevant clauses, if the Owner requests
the unit to not be located adjacent to the external wall,
due to the underground piping required.
11.8 The final location of the wall, window or floor unit must
be determined on site by the Owner.
11.9 The Contractor shall upon installation ensure that all
installed Materials meet current industry standards
applicable to noise levels, however the Contractor
cannot guarantee that noise levels will remain constant
post installation as the Materials may be impacted by
many factors such as the weather, lack of
maintenance, tampering etc.
11.10 In the event that any of the equipment needs to be
relocated due to complaints from neighbours or local

authorities, then the Owner shall be responsible for any
and all costs involved.
11.11 The Owner acknowledges and agrees that it is their
responsibility to insure any equipment partly or
completely installed on site, against theft or damage.
11.12 In the event that the electrical wiring is required to be
re-positioned at the request of any third party
contracted by the Owner then the Owner agrees to
notify the Contractor immediately upon any proposed
changes. The Owner agrees to indemnify the
Contractor against any additional costs incurred with
such a relocation of electrical wiring. All such variances
shall be invoiced in accordance with relevant clauses.
11.13 All work will be tested to ensure that it is electrically
safe and is in accordance with the wiring rules and
other standards applying to the electrical installation
under the Electrical Safety Regulations. All of the
cabling work will comply with the Australian and New
Zealand Wiring standards.
11.14 The Contractor may at its discretion notify the Owner
that it requires to store at the Worksite Materials,
fittings and appliances, or plant and tools required for
the Works, in which event the Owner shall supply the
Contractor a safe area for storage and shall take all
reasonable efforts to protect all items so stored from
possible destruction, theft or damage. In the event that
any such items are destroyed, stolen or damaged then
the cost of repair or replacement shall be the Owner’s
responsibility.
11.15 The Contractor shall not be held responsible for any
damage to the Works caused by outside agents.
Where the Owner requests the Contractor to repair
such damage then the Contractor reserves the right to
charge the Owner for any costs incurred in rectifying
such damage and then the Contractor reserves the
right to charge the Owner for any costs incurred in
rectifying such damage.
12. Underground Locations
12.1 Prior to the Contractor commencing the Work the
Owner must advise the Contractor of the precise
location of all underground services on the Worksite
and clearly mark the same. The underground mains
and services the Owner must identify include, but are
not limited to, electrical services, gas services, sewer
services, pumping services, sewer connections, sewer
sludge mains, water mains, irrigation pipes, telephone
cables, fibre optic cables, oil pumping mains, and any
other services that may be on the Worksite.
12.2 Whilst the Contractor will take care to avoid damage to
any underground services the Owner agrees to
indemnify the Contractor in respect of all and any
liability claims, loss, damage, costs and fines as a
result of damage to services not precisely located and
notified as a per clause 12.

13. Title
13.1 It is the intention of the Contractor and agreed by the
Owner that ownership of Materials shall not pass until:
(a) The Owner has paid all amounts owing for the
particular Materials; and
(b) The Owner has met all other obligations due by
the Owner to the Contractor in respect of all
contractors between the Contractor and the
Owner.

13.2 Receipt by the Contractor of any form of payment other
than cash shall not be deemed to be deemed to be
payment until that form of payment has been
honoured, cleared or recognised and until then the
Contractor’s ownership or rights in respect of Materials
and this contract, shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Materials
shall pass from the Contractor to the Owner the
Contractor may give notice in writing to the
Owner to return the Materials or any of them to
the Contractor. Upon such notice the rights of
the Owner to obtain ownership or any other
interest in the Materials shall cease; and
(b) The Contractor shall have the right of stopping
the Materials in transit whether or not delivery
has been made; and
(c) If the Owner fails to return the Materials to the
Contractor then the Contractor or the
Contractor’s agent may as the invitee of the
Owner enter upon and into land and premises
owned, occupied or used by
The owner of any premise where the Materials are situated
and the possession of the Materials.
14. Personal Properties Securities Act 2009 (“PPSA”)
14.1 In this clause
(a) Financing statement has the meaning given to it
by the PPSA.
(b) Financing change statements has the meaning
given to it by the PPSA.
(c) Security agreement means the security
agreement under the PPSA created between
the Owner and the Contractor by these terms
and conditions; and
(d) security interest has meaning given to it by the
PPSA.

14.2 Upon assenting to these terms and conditions in
writing the Owner acknowledges and agrees that these
terms and conditions constitute a security agreement
for the purposes of the PSA and creates a security
interest in
(a) All Materials previously supplied (if any), and
that will be supplied in the future, by the
Contractor to the Owner,
(b) Any monetary obligations owed by the Owner to
the Contractor for the provision of the Works.

14.3 The Owner undertakes to:
(a) Promptly sign any further documents and/or
provide any further information (such
information to be complete, accurate and up-to-

date in all respects) which the Contractor may
reasonably require to:
(i) Register a financing statement or financing
change statement in relation to a security
interest on the Personal Property Securities
Register,
(ii) Register any other document required to be
registered by the PPSA, or
(iii) Correct a defect in a statement referred to
in relevant clauses,
(b) Indemnity, and upon demand reimburse, the
Contractor for all expenses incurred in
registering a financing statement or financing
change statement on the Personal Property
Securities Register established by the PPSA or
releasing any registration made thereby,
(c) Not register a financing change statement in
respect of a security interest without the prior
written consent of the Contractor,
(d) Not register, or permit to be registered, a
financing statement or a financing change
statement in relation to the Materials and/or
Works in favour of a third party without the prior
written consent of the Contractor, and
(e) Immediately advise the Contractor of any
material change in its business practices of
selling the Materials which would result in a
change in the nature of proceeds derived from
such sales

14.4 The Contractor and the Owner agree that sections 96,
115 and 125 of the PPSA do not apply to the security
agreement created by these terms and conditions
14.5 The Owner hereby waives its rights to receive notices
under sections 95, 118, 121(4), 130, 132(3)(d) and
132(4) of the PPSA
14.6 The Owner waives its rights as a grantor and/or a
debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by the
Contractor, the Owner waives its right to receive a
verification statement in accordance with section 157
of the PPSA.
14.8 The Owner shall unconditionally ratify any actions
taken by the Contractor under clauses 11.3 to 11.5
15. Intellectual Property
15.1 Where the Contractor has designed, drawn and written
plans or a schedule of Works for the Owner, then the
copyright in those plans, schedules, designs and
drawings shall remain vested in the Contractor, and
shall only be used by the Owner at the Contractor’s
discretion.
15.2 The Owner warrants that all designs or instructions to
the Contractor will not cause the Contractor to infringe
any patent, registered design or trademark in the
execution of the Owner’s order.
15.3 The Owner hereby authorises the Contractor to utilise
images of the Works designed or drawn by the
Contractor in advertising, marketing, or competition
material by the Contractor.

16. Default and Consequences of Default
16.1 Where the Contractor has designed, drawn and written
plans or a schedule of Works for the Owner, then the
copyright in those plans, schedules, designs and
drawings shall remain vested in the Contractor, and
shall only be used by the Owner at the Contractor’s
discretion.
16.2 The Owner warrants that all designs or instructions to
the Contractor will not cause the Contractor to infringe
any patent, registered design or trademark in the
execution of the Owner’s order.
16.3 The Owner hereby authorises the Contractor to utilise
images of the Works designed or drawn by the
Contractor in advertising, marketing, or competition
material by the Contractor.
17. Privacy Act 1988
17.1 The Owner agrees for the Contractor to obtain from a
credit reporting body (CRB) a credit report containing
personal credit information (eg name, address, D.O.B,
occupation, previous credit applications, credit history)
about the Owner in relation to credit provided by the
Contractor.
17.2 The Owner agrees that the Contractor may exchange
information about the Owner with those credit
providers and with related body corporates for the
following purposes:
(a) To assess an application by the Owner, and/or
(b) To notify other credit providers of a default by
the Owner, and/or
(c) To exchange information with other credit
providers as to the status of this credit account
where the Owner is in default with other credit
providers, and/or
(d) To assess the creditworthiness of the Owner
including the Owner’s repayment history in the
preceding two (2) years

17.3 The Owner consents to the Contractor being given a
consumer credit report to collect overdue payment on
commercial credit.
17.4 The Owner agrees that personal credit information
provided may be used and retained by the Contractor
for the following purposes (and for other agreed
purposes or required by)
(a) The provision of Works; and/or
(b) Analysing, verifying and/or checking the
Owner’s credit, payment and/or status in relation
to the provision of Works; and/or
(c) Processing of any payment instructions, direct
debit facilities and/or credit facilities requested
by the Owner, and/or
(d) Enabling the collection of amounts outstanding
in relation to the Works.

17.5 The Contractor may give information about the Owner
to a CRB for the following purposes
(a) To obtain a consumer credit report
(b) Allow the CRB to create or maintain a credit
information file about the Owner including credit
history

17.6 The information given to the CRB may include
(a) Personal information as outlined in 14.1 above

(b) Name of the credit provider and the Contractor
is a current credit provider to the Owner.
(c) Whether the credit provider is a licensee;
(d) Type of consumer credit,
(e) Details concerning the Owner’s application for
credit or commercial credit (e.g. date of
commencement/termination of the credit
account and the amount requested),
(f) Advice of consumer credit defaults, overdue
accounts, loan repayments or outstanding
monies which are overdue by more than sixty
(60) days and for which written notice for request
of payment has been made and debt recovery
action commenced or alternatively that the
owner no longer has any overdue accounts and
the Contractor has been paid or otherwise
discharged and all details surrounding that
discharge(e.g. dates of payments),s
(g) Information that, in the opinion of the Contractor,
and the Owner has committed a serious credit
infringement;
(h) Advice that the amount of the Owner’s overdue
payment is equal to or more than one hundred
and fifty dollars ($150).

17.7 The Owner shall have the right to request (by e-mail)
from the Contractor.
(a) A copy of the information about the Owner
retained by the Contractor and the right to
request that the Contractor correct any incorrect
information; and
(b) That the Contractor does not disclose any
personal information about the Owner for the
purpose of direct marketing.

17.8 The Contractor will destroy personal information upon
the Owner’s request (by e-mail) or if it is no longer
required unless if it required in order to fulfil the
obligations of this contract or is required to be
maintained and/or stored in accordance with the law.
17.9 The Owner can make a privacy complaint by
contacting the Contractor via e-mail. The Contractor
will respond to that complaint within seven (7) days of
receipt and will take all reasonable steps to make a
decision as to the complaint within thirty (30) days of
receipt of the complaint. In the event that the Owner is
not satisfied with the resolution provided, the Owner
can make a complaint to the Information
Commissioner at www.oaic.gov.au
18. Termination
18.1 Neither party to this contract may terminate the
contract if that party is themselves in substantial
breach of this contract (i.e. that party fails or refuses to
perform a substantial obligation under this contract).
18.2 The Owner may serve notice of their intent to terminate
this contract if the Contractor:
(a) Fails to perform the Works in a competent or
diligent manner;
(b) Suspends the Works for any reason other than
is allowed under this contract;

(c) Refuses to replace any defective Materials or
remedy any defective Works so as to negatively
impact on the Works;
(d) Has the Contractor’s licence cancelled or
suspended;
(e) Fails to effect or maintain any insurance that is
required under this contract;
(f) Fails or refuses to complete the Woks or
abandons this contract;
(g) Is otherwise in substantial breach of this
contract.

18.3 If the Owner serves notice on the Contractor then such
notice must:
(a) Contain full details of the alleged breach or
breaches; and
(b) State that it is the Owner’s intention to terminate
the contract unless the Contractor has remedied
all such breached within ten (10) working days
of receipt by the Contractor of such notice.
18.4 The Contractor may serve notice of their intent to
terminate this contract if the Owner:
(a) Fails to comply with the Owner’s obligations;
(b) Is otherwise in substantial breach of this
contract.

18.5 If the Contractor serves notice on the Owner under
clause 15 then such notice must:
(a) Contain full details of the alleged breach or
breaches; and
(b) State that it is the Contractor’s intention to
terminate the contract unless the Owner has
remedied all such breaches within ten (10)
working days of receipt by the Owner of such
notice.

18.6 If either party to this contract is given notice by the
other party to this contract that they are in substantial
breach of this contract and does not rectify or attempt
to substantially rectify any breach stated in the notice
within ten (10) working days or receiving such notice,
then the party giving the notice by giving a separate
notice to the other party terminate this contract.
18.7 If the contract is ended under this clause 15, the
Contractor is entitled to a reasonable amount for any
Works already carried out plus any other costs incurred
by the Contractor as a result of, or prior to, the
termination of the contract, including, but not limited to:
(a) The cost of any Materials already purchased for
the Works, or ordered from the Contractor’s
suppliers which cannot be returned to the
Contractor’s suppliers, or for which the order
cannot be cancelled;
(b) Any restocking fees charged by the Contractor’s
suppliers;
(c) Any additional costs incurred by the Contractor
through having to quit the Worksite early;
(d) The Contractor’s margin (i.e twenty percent
(20%)) on any monies that become due and
payable as a result of the application of this
clause 15 excluding sub-clauses (b) and (e);
(e) Ten percent (10%) of the contract price; and
(f) Any default interest, fees or charges that the
Contractor is entitled to charge, or incurs, under
clause 15.

18.8 Notwithstanding clause 15, where the Contractor has
already taken a deposit from the Owner and the
deposit amount is in excess of the monies to which the
Contractor is entitled under clause 15 then the
Contractor agrees to refund all monies in excess of the
amount due to the Contractor to the Owner within five
(5) working days of the termination of this contract.
18.9 Either the Owner or the Contractor may terminate this
contract upon written notice if the other party:
(a) Becomes insolvent or is unable to pay their
debts;
(b) Commits an act of bankruptcy or is made
bankrupt;
(c) Assigns assets for the benefit of creditors
generally;
(d) Makes a composition or other arrangement with
creditors; or
(e) Enters into liquidation or receivership.
19. Warranty
19.1 The Contractor warrants that:
(a) The Works will be performed in a proper and
workmanlike manner and in accordance with the
plans and specifications set out in the contract,
(b) All Materials supplied by the Contractor will be
good and suitable for the purpose for which they
are used and unless otherwise stated in the
contract, those Materials will be new;
(c) The Works will be done with due diligence and
within the time stipulated in the contract, or if no
time is stipulated within a reasonable time,
(d) If the Works consist of the making of alterations
or additions to a dwelling or the repairing,
renovation, decoration or protective treatment of
a dwelling, the Works will result, to the extent of
the Works conducted, in a dwelling that is
reasonably fit for occupation as a dwelling,
(e) The Works and any Materials used in providing
the Works will be reasonably fit for the specified
purpose or result, if the Owner expressly makes
known to the holder of the Contractor licence or
person required to hold a Contractor licence, or
another person with express or apparent
authority to enter into or vary contractual
arrangements on behalf of the holder or person,
the particular purpose for which the Works is
required or result that the Owner desired the
Work to achieve, so as to show that the Owner
relies on the holder’s or person’s skills and
judgement.

19.2 Claims in regards to statutory warranties must be
made within six (6) years for structural Works or within
two (2) years for non-structural Works both periods
commencing from the date the Works have been
completed in accordance with relevant clauses. The
time periods specified in this clause shall be extended
for an additional six (6) months in the event that a
homeowner or subsequent purchaser becomes aware

of a defect within the last six (6) months of the time
periods specified.
19.3 The Contractor also warrants that all Works done
under this contract will comply with:
(a) The Building Code of Australia and carried out
in accordance with all relevant laws and legal
requirements (to the extent required under the
Environment Planning and Assessment Act
1979, including any regulation or other
instrument made under that Act, the Electricity
(Consumer Safety) Act 2004, and the Plumbing
and Drainage Act 2011), and
(b) All other relevant codes, standards and
specifications that the Works are required to
comply with under any law; and
(c) The conditions of any relevant development
consent or complying development certificate.
19.4 Despite clause 16.3, this contract may limit the liability
of the Contractor for a failure to comply with clause
16.3 if the failure solely relates to:
(a) A design or specification prepared by or on
behalf of the Owner (but not by or on behalf of
the Contractor), or
(b) A design or specification required by the Owner,
if the Contractor has advised the Owner in
writing that the design or specification
contravenes clause 16.3.

19.5 For Materials not manufactured by the Contractor the
warranty shall be the current warranty provided by the
manufacturer of the Materials. The Contractor shall be
under no liability whatsoever except for the express
conditions as detailed and stipulated in the
manufacturer’s warranty.
20. Surplus Materials
20.1 Unless otherwise stated elsewhere in this contract:
(a) Demolished Materials remain in the Owner’s
property, and
(b) Materials which the Contractor brings to the
Worksite which are surplus remain the property
of the Contractor.

21. Disputes
21.1 If the Owner or Contractor believes a dispute has
arisen in relation to any matter under this contract, then
that party must promptly give the other party written
notice setting out the matter in dispute
21.2 Both parties shall meet within fourteen (14) days of the
giving of such notice to attempt to resolve the dispute.
21.3 In the event that the dispute cannot be resolved then
the matter shall be referred to the Office of Fair Trading
for assistance in the resolution of the dispute.
22. The Commonwealth Competition and Consumer
Act 2010, Home Building Act 1989, Home Building
Regulations 2004, and Fair Trading Acts
22.1 Nothing in this contract is intended to have the effect
of contracting out of any applicable provisions of the
Commonwealth Competition and Consumer Act 2010,
Home Building Act 1989, Environmental Planning and
Assessment Act 1979, Home Building Regulations

2004, and Fair Trading Acts in each of the States and
Territories of Australia (including any substitute to
those Acts or re-enactment thereof), except to the
extent permitted by those Acts where applicable.
23. Service Notices
23.1 Any written notice given under this contract shall be
deemed to have been given and received:
(a) By handing the notice to the other party, in
person,
(b) By leaving it at the address of the other party as
stated in this contract,
(c) By sending it by registered post to the address
of the other party as stated in this contract (if
any) on receipt of confirmation of the
confirmation,
(d) If sent by facsimile transmission to the fax
number of the other party as stated in this
contract (if any)on receipt of confirmation of the
transmission;
(e) If sent by email to the other patty’s current email
address.

23.2 Any notice that is posted shall be deemed to have been
served, unless the contrary is shown, at the time when
by the ordinary course of post the notice would have
been delivered.
24. General
24.1 The failure by either party to enforce any provision of
these terms and conditions shall not be treated as a
waiver of that provision, nor shall it affect that party’s
right to subsequently enforce that provision. If any
provision of these terms and conditions shall be invalid,
void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions
shall not be affected, prejudiced or impaired.
24.2 If any provisions of this contract are inconsistent with
the PPSA, the PPSA shall prevail to the extent of that
inconsistency.
24.3 This contract shall be governed by the laws of New
South Wales and are subject to the jurisdiction of the
Hornsby Court in New South Wales.
24.4 The Contractor shall be under no liability whatever to
the Owner for any indirect loss and/or expense
(including loss or profit0 suffered by the Owner arising
out of a breach by the Contractor of this contract.
24.5 Subject to relevant clauses, in the event of any breach
of this contract by the Contractor, the remedies of the

Owner Shall be limited to damages Under no
circumstances shall the liability of the Contractor
exceed the Contract Price.
24.6 Unless otherwise provided in writing, the Owner shall
not be entitled to set off against or deduct against or
deduct from the Contract Price any sums owed or
claimed to be owed to the Owner by the Contractor.
24.7 Where more than one Owner has entered into this
contract, the Owners shall be jointly and severally
liable for all payments of the Contract Price and any
other obligations of the Owner under this contract
24.8 None of the Contractor’s agents or representatives are
authorised to make any representations, statements,
conditions or agreements not expressed by the
manager of the Contractor bound by any such
unauthorised statements.
24.9 The Contractor may licence and/or assign all or any
part of its rights and/or obligations under this contract
without the Owner’s consent.
24.10 The Owner cannot assign or licence without the written
approval of the Contractor.
24.11 The Contractor may elect to subcontract out any part
of the Works but shall not be relieved from any
reliability or obligation under this contract by so doing.
Furthermore, the Owner agrees and understands that
they have no authority of the Contractor.
24.12 The Owner agrees that the Contractor may review this
contract by notifying the Owner in writing. If, following
any such review, there is to be any change to this
contract, then that change will take effect from the date
on which the Owner accepts such changes, or
otherwise at such time as the Owner makes a further
request for the Contractor to provide Works to the
Owner.
24.13 Neither party shall be liable for the any default due to
any act of God, war, terrorism, fire, flood, storm or
other event beyond the reasonable control of either
party.
24.14 The failure by the Contractor to enforce any provision
of this contract shall not be treated as a waiver of that
provision, nor shall it affect the Contractor’s right to
subsequently enforce that provision.
24.15 This contract, the plans and specifications have
precedence in that order if there is any inconsistency
between them.

 

SECTION 22 - $20,000+ TERMS AND CONDITIONS

1. Definitions
(a) “Contractor” shall mean Proven Air Conditioning Ltd
T/A Proven Air Conditioning, its successors and
assigns or any person acting on behalf of and with
the authority of Proven Air Conditioning Ltd T/A
Proven Air Conditioning.
(b) “Works” shall mean all Works (including the supply of
Materials) undertaken by the Contractor and
described in this contract and includes any advice or
recommendations. Where the context so permits the
terms ‘Works’ or ‘Materials’ shall be interchangeably
for each other.
(c) “Materials” shall mean Materials supplied by the
Contractor that are required in order complete the
Works.
(d) “Contract Price” means the Contract Price of the
Works (as agreed between the Contractor and the
Owner) specified in Box E above (and shall include
any adjustments made under the provisions
contained in this contract).
(e) “Security Monies” means the amount of the Contract
Price that is payable under this contract for the Works
which is to be provided by the Owner personally and
which is not subject to provision by way of a loan from
a financial institution.
(f) “Worksite” means the land (or that part of the land)
that the Contractor reasonably needs to occupy in
order to carry out and practically complete the Works
required under this contract.
(g) “Resident Owner” OR “Owner” has the same meaning
as contained in the Schedule of the Home Building
Act 1989 and means an owner who is an individual
and intends to reside on the Worksite on completion
of the domestic building work or within 6 months after
the completion of the Works; and
(h) “Home Building Act” means the Home Building Act
1989 and includes any amendments from time to
time).

1.2 In this contract, unless the context requires:
(a) Plurals. The singular shall include the plural and vice
versa and words importing one gender shall include
every gender and a reference to a person shall
include any other legal entity of whatsoever kind and
vice versa.
(b) Statutory amendments. A reference to a statue,
ordinance, code or other law includes regulations and
other statutory instruments under it and
consolidations, amendments, re-enactments or
replacements of any of them (whether of the same or
any other legislative authority having jurisdiction).
(c) Joint obligations. An obligation incurred in favour of
two or more parties shall be enforceable by them
jointly and severally.

(d) Parts of contract. References to this contract
including its clauses, schedules, annexures.
(e) Headings. Headings shall be ignored in construing
this document.
2. Acceptance/Cooling off Period
2.1 Any instructions received by the Contractor from the Owner
(including the acceptance of a Residential Quotation) for the
provision of Works and/or the Owner’s acceptance of Works
undertaken by the Contractor shall constitute acceptance of
the terms and conditions contained herein subject to the
Owner being able to withdraw from this contract (subject to
clause 2.2) within five (5) business days following the later
of:
(a) Receipt from the Contractor of a signed copy of this
contract; or
(b) Receipt from the Contractor of a copy of the
appropriate contract information sheet.

2.2 To withdraw from this contract, the Owner must complete a
withdrawal notice stating that the Owner withdraws from the
contract pursuant to section 7BA of the Home Building Act
within the timeframe specified in clause 2.1 above, and:
(a) Give it to the Contractor,or
(b) Leave it at the Contractor’s address in this contract;
or
(c) Serve it on the Contractor in accordance with any
provision in this contract providing for delivery of
notices on the Contractor by the Owner, and
(d) Pay to the Contractor the sum of one hundred dollars
($100.00) plus any out-of-pocket expenses
reasonably incurred by the Contractor before the date
of withdrawal from this contract. If the Owner has paid
to the Contractor an amount which is greater than this
amount as at the date of the Withdrawal from this
contract, the Contractor must refund to the Owner any
excess monies.

2.3 The Owner may not withdraw from this contract where:
(a) There has been a previous contract on similar terms
for the same Worksite/property; or
(b) The Owner has received the independent legal advice
about the contract; or
(c) The Owner informs the Contractor that they have
received independent legal advice about the contract
when or after the contract is made.

2.4 Subject to clauses 2.1 and 2.2 upon acceptance of this
contract by the Owner, this contract is binding and can only
be rescinded in accordance with this contract or with the
written consent of the Contractor, and shall prevail to the
extent of any inconsistency with any other document, or
reference to any prior representations, conditions or
agreement (whether written or oral) between the Owner, and
the Contractor.
2.5 The Owner acknowledges:
(a) Proven shall not be liable for the cost involved in
making good any (including but not limited to,
painting, gyprocking or rendering work) resulting from
damage caused in the course of Proven’s Services
(unless due to the negligence of Proven; and

(b) the organisation of, and any cost involved in the
removal of rubbish (including, but not limited to,
broken pipes, rocks , flora and soil) that is created by
the Services shall be the Client’s responsibility;
(c) Proven will not be held liable for any condensate
drainage caused by the air conditioner unless it has
been decided the issue was caused by Proven's
negligence;
(d) there are particular site conditions (including, but not
limited to, positioning of underground electrical
cabling) that can cause blockage location devices to
pinpoint erroneous locations. The Client agrees they
shall indemnify Proven against all additional costs
incurred due to inaccurate readings; and;
(e) Proven Air is preparing to perform necessary work to
your Air Conditioner. This is most likely because it
requires ongoing maintenance and/or repairs to keep
it functioning properly. The recommended work to be
carried out is the result of the technician completing
an assessment of the current condition of your
system and: A maintenance on a system will keep the
system in good and clean condition, improving
efficiency and expanding its lifespan - if there is a
fault somewhere in the system, it will not fix this issue.
If a component/part/section of the system is faulty and
should be repaired, once the initial work has been
completed there is a chance that another item could
also be faulty or not working to its full potential, this
could require further testing and repairs which will be
charged for. In the event that the initial
repairs/maintenance don’t get the system working to
its desired level, Proven will charge for further testing
and/or further repairs. Ask your technician for the best
advice on whether the system should be maintained
and/or repaired, or if the money would be better
invested in a replacement. Proven is here to provide
the best professional knowledge on each air
conditioner that is encountered, without paying for
unnecessary work.
3. Contract Price and Payment
3.1 The Owner shall pay the Contractor the deposit stated in
Box G and any deposit shall be payable on the latter day
that:
(a) This contract is signed by the Owner; or
(b) Where insurance is required under the Home Building
Compensation Fund, being the day that the Owner is
provided with the certificate of the appropriate
insurance.

3.2 The Owner must within (10) working days of signing this
contract provide evidence to the Contractor’s satisfaction of
the Owner’s ability to pay the Contract Price. TheContractor
may at any time that this contract remains in force request
such information to be supplied by the Owner so that the
Contractor may confirm the Owner’s ability to pay the
balance of the Contract Price or any variation to this
contract.
3.3 The Owner agrees to immediately notify the Contractor in
the event that their ability to pay the Contract Price is
reduced or ceases at any time that this contract remains in
force.

3.4 The Contractor is entitled to claim payment of the Contract
Price progressively in accordance with the stages specified
in Box G. Each progress payment claim shall:
(a) Be in writing and specify the total amount claimed;
(b) State any adjustments to the Contract Price which is
allowed under this contract(whether authorised
variations, related to Prime Cost Item/s or Provisional
Sum/s, or otherwise, which have become due and
payable by the Owner);
(c) Confirm that all Works to which the payment stage
relates have been completed.

3.5 The Owner must pay for all progress payment claims within
seven (7) working days of receipt of the progress payment
claim from the Contractor.
3.6 Where the Owner’s lender is to pay a progress payment
claim on the Owner’s behalf then the Owner shall ensure
that each such payment is made in accordance with clause
3.5.
3.7 Payment may be made by cash, cheque, bank cheque,
electronic/on-line banking, or by any other method as
agreed to between the Owner and theContractor.
3.8 In the event that the cost to the Contractor of performing the
Works increases after this contract has commenced due to
any increase, or the introduction, by a statutory or other
authority, of a tax, duty, charge, levy, or legislation then the
amount of the increase is to be treated as a variation and
clause 4 shall apply.
3.9 The Contract Price shall be increased by the amount of any
GST and any other taxes and duties which may be
applicable, except to the extent that such taxes or duties are
already expressly included in the Contract Price.
4. Variations
4.1 In the event that the Owner requests a variation the
Contractor will give the Owner a written document detailing
the Works, the amended Contract Price, the estimated time
to undertake the variation, and the likely delay to the Works
(if any), and require written acceptance by the Owner of the
variation before commencing any Works detailed in the
variation.
4.2 The Contractor may (without have to specify any reason
why) refuse to undertake any variation requested by the
Owner.
4.3 In the event that the Contractor requests a variation (which
they Contractor may only do if the variation is necessary
due to circumstances that the Contractor could not have
reasonably foreseen at the time this contract was entered
into), then the Contractor will, in writing:
(a) State the reason for the variation; and
(b) Provide a full description of the variation; and
(c) State any effect the variation will have on the contract
including but not limited to, the Contract Price,
completion date and whether further permits or
authorisations are required.

4.4 Any adjustment to the Contract Price due to variation/s shall
be allowed for at time of the next progress payment claim by
the Contractor.
4.5 Other than for the events outlined in clause 4.7 the
Contractor shall obtain written acceptance by the Owner of

any variation submitted by the Contractor before
commencing on the variation. The Owner must not refuse to
accept any variation that is necessary in order for the Works
to meet compliance with legal requirements.
4.6 The Contractor must allow a reasonable reduction to the
building period if a variation reduces the amount of Works
required in order to achieve practical completion.
4.7 The Contractor may carry out any necessary Works in the
event of:
(a) Unforeseeable problems with the Worksite which are
only revealed when undertaking the Works which the
Contractor considers must be rectified for the safe
completion of the Works; or
(b) Any Works that the Contractor considers are required
to be undertaken urgently and it is not reasonably
practicable to obtain written acceptance from the
Owner before commencing the variation; or
(c) The Contractor being instructed to undertake any
extra Works by any person authorised by the Home
Building Act.

4.8 If the price for a variation is not agreed upon then theOwner
will be charged at the Contractor’s actual cost plus the
Contractor’s margin (i.e. an amount to cover the
Contractor’s overheads, administrative costs, and profit)
being twenty (20%) percent.
5. Provisional Sums and Prime CostItems
5.1 If the cost of a Provisional Sum or Prime Cost Item is less
than the above estimated cost, the Contract Price will be
reduced to take the difference into account. If the cost of a
Provisional Sum or Prime Cost Item is more than the above
estimated cost, the Contract Price will be increased to take
the difference into account and an additional amount equal
to the percentage of the difference indicated as the
Contractor’s margin shall be added to cover the Contractor’s
profit, and additional services and overheads.
5.2 The Contractor warrants that any Provisional Sum has been
calculated with reasonable care and skill taking account of
all the information reasonably available at the date the
contract is made, including the nature and location of the
Worksite. Note: The installation of any Prime Cost Item, and
connection to services, unless otherwise specified, is
included in the Contract Price.
5.3 Any variations to the Contract Price as a result of the cost of
any Provisional Sum or Prime Cost Item shall be taken into
account in the calculation of the progress payment due after
completion of the relevant Provisional Sum or installation of
the relevant Prime Cost Item.
5.4 For the purposes of this clause 5, the following words shall
have their corresponding meanings:
(a) “Prime Cost Item” shall mean an item that either has
not been selected, or the price of which is not known,
at the time this contract is entered into, and for which
the cost of supply, delivery and installation the
Contractor must make a reasonable allowance for in
this contract.
(b) “Provisional Sum” shall mean an estimate of the cost
of carrying out particular Works under this contract for

which the Contractor, after making all reasonable
inquiries, cannot give a definite price for at the time
this contract is entered into.

5.5 If the Contractor advises the Owner that a Prime Cost Item
which the Owner has selected is not available then the
Owner must advise the Contractor in writing within five (5)
working days of such notice of an alternative choice of item,
failing which the Contractor shall be entitled on the Owner’s
behalf to select an item of similar specification and quality
as the unavailable item originally selected (providing detail
of the same to the Owner). In the event that the Owner
should object to the Contractor’s selection for any reason
then the Owner must immediately notify the Contractor of
the same and the Contractor shall be entitled to suspend
the Works under clause 16 until either the original item is
not acceptable will be taken as acceptance by the Owner of
the alternative item.
5.6 If the actual cost of a Prime Cost Item or the actual cost of
the Works for a Provisional Sum is less than the sum
allowed for that item, then the difference shall be deducted
from the Contract Price and shall be shown by the
Contractor as part of the next progress payment claim.
5.7 If the actual cost of a Prime Cost Item or the actual cost of
the Works for a Provisional Sum is greater than the sum
allowed for that item, then the difference (plus the
Contractor’s margin stated in Box N or Box O (each as is
applicable to this contract) shall be added to the Contract
Price and shall be claimed by the Contractor as part of the
next progress payment claim.
5.8 The Contractor is required to give the Owner a copy of any
relevant invoice or receipt evidencing the actual cost of the
work included in any Provisional Sum item or Prime Cost
Item schedule at the time the payment is requested.
6. Finance
6.1 If this contract is conditional upon the Owner obtaining a
loan from an Australian financial institution, then they shall
provide the Contractor with written confirmation of the loan
approval by the date specified in Box H above. Such written
confirmation is to include confirmation from the financial
institution that the Contractor may commence theWorks.
6.2 The Owner shall authorise the Owner’s lender to, and the
Owner’s lender may then, pay all monies advanced to the
Owner for payment of the Contract Price of the Works (or
any part thereof) and approved by the Owner direct to the
Contractor.
6.3 In the event any such loan application is declined then the
Owner shall have the right to withdraw from this contract
subject to the Owner providing the Contractor with written
evidence within five (5) working days of the date specified in
Box H above that the loan was declined. Upon receipt of
such evidence the Contractor shall refund the Owner any
deposit paid in accordance with clauses 31.7 and 31.8.
7. Security Monies
7.1 The Owner shall, prior to the commencement of any Works,
deposit any Security Monies into an interest bearing account
at a financial institution mutually agreed between the Owner
and the Contractor. The account must be joint account in

the names of both the Owner and the Contractor and
withdrawals shall require the signature of both of those
parties.
7.2 It is agreed that Security Monies shall be used to pay
progress payments to the Contractor before any loan
monies are used to pay progress payments.
7.3 In the event that the Owner fails to pay any Security Monies
due to the Contractor or the Contractor terminates this
contract under clause 31 then the Contractor shall be
entitled to Security Monies equivalent to any amount due
and owing to the Contractor after having applied clauses
31.7 and 31.8.
7.4 After payment of the final progress payment to the
Contractor any Security Monies remaining in the account
(including any interest) shall belong to the Owner (including
any interest earned thereon).
8. The Worksite and WorksiteAccess
8.1 The Owner warrants to the Contractor that the Owner is
allowed to build on the Worksite specified herein, that the
description of the Worksite above is correct and that all
Building Restrictions, Covenants, Easements that may
affect the Works to be undertaken under this contract have
been fully disclosed above.
8.2 The Owner warrants that the structure of the premises or
equipment in or upon which these Materials are to be
installed or erected is sound and will sustain the installation
and work incidental thereto and the Contractor shall not be
liable for any claims, demands, losses, damages, costs and
expenses howsoever caused or arising should the premises
or equipment be unable to accommodate the installation.
8.3 The Owner must within ten (10) working days of signing this
contract provide the Contractor with evidence to the
Contractor’s satisfaction of the Owner’s title to theWorksite.
8.4 The Owner must within ten (10) working days of signing this
contract provide the Contractor with evidence to the
Contractor’s satisfaction of the Owner’s title to theWorksite.
8.5 It is the Owner’s responsibility to:
(a) Provide the Contractor with any information, including
location and dimensions of fittings, in a timely manner
in order to facilitate the provisions of theWorks;
(b) Ensure that Materials specified are of the correct size,
type, colour, quality and finish as shown in
specifications, drawings or plans;
(c) Supply power to within eight (8) metres of the Works
or any other facility that is required by the Contractor
and communicated with the Owner shall be the
Owner’s responsibility to supply and shall conform to
any applicable statutes, regulations and/or bylaws.
8.6 As soon as is practical after the signing of this contract the
Owner is to provide the Contractor with free and
uninterrupted access to the Worksite and any existing
buildings as is necessary for the Contractor to undertake the
Works.
8.7 The person nominated in Box J is responsible for all costs
involved in ensuring that access (under all usual weather
conditions as may reasonably be expected) to the Worksite
for all machinery and vehicles (as is reasonably required for
the Works) is available whilst the Works are being

undertaken by the Contractor. If the person nominated is the
Owner and the Contractor is for any reason required to
undertake any additional Works to achieve the required
access, then this shall be deemed a variation, in addition to
the Contract Price and clause 4 shall apply.
8.8 The Contractor shall not be liable for any damage to
pathways, driveways, concreted, paved or grassed areas
unless due to the negligence of theContractor.
8.9 The Owner, or a third party authorised by the Owner, shall
by supplying a written request to the Contractor have the
right to reasonable access to the Worksite, and to view the
Works provided always that:
(a) The Owner/third party must not interfere with or
hinder the Contractor’s access to the Worksite or the
progress of the Works;
(b) The Owner/third party must not access the Worksite
without the Contractor’s approval;
(c) The Owner/third party must not make inquiry of, or
issue any directive or instruction to, the Contractor’s
employees or subcontractors and must communicate
solely with the Contractor. Furthermore, the Owner
acknowledges and agrees that they shall not be
entitled to rely on any statement or representation
made by any of the Contractor’s employees or
subcontractors unless confirmed in writing by the
Contractor;
(d) Access all shall only be allowed during standard
working hours and under the Contractor’s
supervision;
(e) The Owner/third party agrees to comply with the
following obligations under the Work Health and
Safety Act 2011;
(i) To comply with all instructions given by the
Contractor regarding workplace health and safety
requirements at the Worksite pursuant to the
Work Health and Safety Act 2011;
(ii) Not to interfere with any workplace health and
safety equipment, manuals, or signage at the
Worksite;
(iii) Not to place at risk the health and safety of any
person (or themselves) at theWorksite;
(iv) Not to wilfully injure themselves or any other
person.

8.10 In the event that the Owner, or a third party authorised by
the Owner shall fail to comply with clause 9.8 then the
Contractor may exclude or remove that person from the
Worksite and further the Owner agrees to indemnify the
Contractor against:
(a) Any liability, loss, claim, or legal action in respect of
injury to any person, or loss of, or damage to, any
property at the Worksite (howsoever arising) as a

direct result of the Owner/third party’s non-
compliance; and

(b) All additional costs or losses incurred by the
Contractor (howsoever arising) as a result of the
Owner/third party’s non-compliance. The Contractor
must claim all such costs (which shall be in addition to
the Contract Price) by giving written notice to the
Owner within five (5) working days of becoming

aware that such additional or losses have been
incurred.

9. Planning and Building Approvals
9.1 The party specified in Box K above is responsible for, and
shall promptly obtain (taking all reasonable and necessary
steps and at their own cost), all building approvals and
consents (whether statutory or otherwise) that are
necessary to enable the Contractor to commence Works at
the Worksite.
9.2 If the Contractor is the person specified in Box K then the
Owner agrees to give the Contractor all possible assistance,
and sign all necessary document/s, to enable the Contractor
to obtain the necessary consents and approvals in a timely
manner.
9.3 All consents and approvals are to be obtained by the
specified start date where possible, but must be obtained no
later than within sixty (60) working days of the signing of this
contract, failing which the parties to this contract shall
(without liability to the other except as is specified in clause
10.4) be entitled to suspend or terminate this contract by
giving written notice to the other party.
9.4 Where the Contractor opts to suspend this contract under
clause 10.3 then clause 16 shall apply.
9.5 Where the Contractor opts to terminate this contract under
clause 10.3 then clause 31, (in particular 31.7 and 31.8)
shall apply.
10. Provision of the Works
10.1 Subject to clause 11.2, it is the Contractor’s responsibility to
ensure that the Works commence as soon as it is
reasonably possible.
10.2 Therefore, the Works shall commence within ten (10)
working days of the latest date that the Owner has complied
with clauses 6.1, 7.1, 9.1, 9.3, 10.3 (each as applicable to
this contract).
(a) A variation being requested by either the Owner or
Contractor,
(b) A calculable delay in excess of the period allowed for
and specified in Box F (but only to the extent of the
actual delay in excess of the period already allowed);
(c) A force majeure event as per clause 35.10 (but only
for the period that the force majeure event affects the
Works);
(d) Any dispute with adjoining, residents (including
tenants), neighbours, or owners;
(e) Any act, omission, or default of the Owner (including
the failure of the Owner to agree to, or sign a
variation, or to comply with clauses 6.1, 7.1 or 9.1);
(f) Any delay in the supply or manufacture of Materials
required for the Works;
(g) Delays in receiving consent/s and/or approvals
beyond the period specified in clause 10.3;
(h) Delay by the Owner in making a selection;
(i) A survey is required as per clause 9.3.
10.3 Nothing in this contract shall have the effect of limiting or
preventing the Contractor from claiming more than one
extension of time for a delay specified in clause 11.2.
10.4 If the Owner disputes any extension of time the Owner must
provide the Contractor with written notification specifying the

reason for the Owner receiving the Contractor’s time
extension request. Lack of advice from the Owner to the
contrary shall mean that the Owner has accepted the
Contractor’s time extension request.
10.5 The Contractor shall within five (5) working days of
commencement of the Works confirm to the Owner in
writing the actual date that the Works commenced and the
expected date for practical completion.
11. Practical Completion
11.1 The Works shall be deemed to be practically completed
(subject to the following clauses) when:
(a) The home or detached dwelling is reasonably suitable
for habitation; and
(b) The Works carried out under this contract have been
completed without any major omissions or defects in
accordance with the plans and specifications set out
in this contract; and
(c) All statutory requirements have been met; or
(d) The Owner takes possession of theWorksite
11.2 The Contractor shall upon reaching practical completion
provide the Owner with:
(a) Written notice that the Works have been practically
completed and the date of the same;
(b) The Contractor’s final payment claim;
(c) Notice that a final inspection of the Works is required
and a date and a time when this is to take place;
(d) Notice that a final inspection of the Works is required
and a date and a time when this is to take place;
11.3 The Owner shall if unable to attend the final inspection
when scheduled by the Contractor shall immediately contact
the Contractor and arrange a mutually acceptable time for
the inspection to occur. The inspection must be scheduled
to take place within the Contractor’s normal working hours
and within five (5) working days of the original date specified
by the Contractor.
11.4 In the event that the Owner fails to attend a final inspection
as is arranged then it shall be deemed that the Owner has
accepted the Works as being practically completed and
shall pay the Contractor’s final payment claim in accordance
with the terms of this contract.
11.5 If at the final inspection the Owner agrees that no defects
exist, then the Owner shall sign a notice to that effect and
shall pay the Contractor’s final payment claim in accordance
with the terms of this contract.
11.6 If at the final inspection the Owner the claims that defect
exist and/or that there are any omission/s to the Works,then
the Contractor shall give the Owner a defects document
that:
(a) Lists the minor defects and minor omissions that both
the Contractor and Owner agree exist; and
(b) States by when the Contractor is to correct the listed
defects and omissions; and
(c) Lists the minor defects and omissions the Owner
claims exist, but that are not agreed by the Contractor
to exist; and
(d) Is signed by the Contractor.
11.7 The Contractor shall within the time period stated in the
defects document rectify any defect or correct any omission,

notwithstanding which if there is any delay in the supply of
required Materials then the Owner shall allow the Contractor
a reasonable period in which to supply the same. The
Contractor shall remain entitled to make a final payment
claim so long as the Contractor has made all reasonable
efforts to have the Owner sign the defects document to
acknowledge its contents.
11.8 Payment of a final progress payment claim shall mean that
the Owner discharges the Contractor of any further
obligations under this contract (excluding clauses 13, 27.1
and 27.2) except as may be required by the Home Building
Act or any other law. Upon receipt of the final progress
payment the Contractor must quit the Worksite at the
Contractor’s own expense (including removing any of the
Contractor’s rubbish or surplus Materials) and shall hand
any keys to buildings on the Worksite to the Owner.
12. Defects Liability Period
12.1 The Contractor agrees to rectify (at the Contractor’s own
cost) any defect in the Works that are due to the faulty
workmanship of the Contractor, defective Materials having
been supplied by the Contractor, or Works not being
performed by the Contractor in accordance with this
contract, that becomes evident and which the Contractor is
notified of within the period specified in Box M above.
12.2 The Contractor is to rectify any such defects or omissions
notified to the Contractor in accordance with clause 13.1
within twenty (20) working days of receipt of such notice,
and the Owner must give the Contractor reasonable access
to the Worksite for that purpose.
13. Possession of the Worksite
13.1 The Owner shall not be entitled to take possession of the
Worksite (or any part thereof), or to receive any keys to
buildings on the Worksite until the Contractor has been paid
the Contract Price in full (subject to any price adjustments
made in accordance with this contract), unless the
Contractor has otherwise agreed in writing.
13.2 If the Owner takes possession of the Worksite at any time
other than in accordance with clause 14.1 then the Works
shall be deemed to be practically completed and clauses
12.2 to 12.8 and 31.7 and 31.8 shall immediately apply. For
the sake of clarity if this clause becomes applicable then the
Contractor shall be relieved of all liability or obligation in
regards to all Works that are uncompleted or were yet to be
performed under this contract.
14. Materials, Documents and Works Supplied by the
Owner
14.1 The Owner:
(a) Warrants that any documentation supplied for the
Works and the content or methods therein are
accurate and/or suitable to be used for the purpose
for which the document/s were created;
(b) Agrees that it is reasonable for the Contractor to rely
on the documentation;
(c) Agrees to supply the Contractor with as many copies
of the documentation as the Contractor may
reasonably need to perform the Works or to obtain
any necessary approvals required for the Works.

14.2 The Owner agrees that all materials and works supplied by
the Owner or the Owner’s third party subcontractorswill:
(a) Be performed or supplied in accordance with all
legislative requirements (including, but not limited to,
the Home Building Act and Work Health and Safety
legislation);
(b) Be suitable for their inclusion into theWorks;
(c) Be completed to the Contractor’s requirements.
14.3 The Contractor may, where the Contractor believes that any
materials or works supplied by the Owner or any third party
employed by the Owner are defective, required that the
defective materials be replaced or require such works as are
considered defective to be removed, repaired or replaced,
the costs of which shall be the Owner’s responsibility.
14.4 Notwithstanding clause 15.3 the Contractor shall have no
liability whatsoever in terms of the performance of, or
suitability of, any materials or works supplied by either the
Owner or any third party employee of the Owner.
14.5 In the event that the Owner must ensure that the Owner
and/or any third party so employed:
(a) Is appropriately licensed for the works being
undertaken, and will provide evidence of the same
upon request by the Contractor;
(b) Does not interfere with the progress of Works by the
Contractor;
(c) Holds all relevant insurances as the Contractor is
required to hold or are otherwise required under this
contract;
(d) Co-operates with all requests or directives of the

Contractor in relation to the timeliness and co-
ordination of works to be performed;

(e) Co-operates as may be reasonably expected with all
other persons on the Worksite;
(f) Discusses any Worksite issues directly with the
Contractor and not with any of the Contractor’s
employees.

14.6 In the event that the Owner or the Owner’s third party
employees do not comply with clauses 15.3 or 15.5 then the
Contractor may require the non-compliant party to either
leave and/or stay off the Worksite as the Contractor may so
direct.
14.7 If the Owner breaches this clause, then the Contractor may
(at the Contractor’s sole discretion) either;
(a) Carry on the Works without incorporation of any
Owner supplied materials or works;
(b) Suspend the carrying out of the Works as per clause
16;
(c) Terminate this agreement in accordance with clause
31.

15. Suspension of the Works
15.1 In the event that the Owner fails or refuses to comply with
an obligation specified in this contract, then the Contractor
shall be entitled (without prejudice to any other rights of the
Contractor under this agreement) to suspend the Works.
Where the Contractor intends to suspend the Works under
the provision of this clause, the Contractor must immediately
notify the Owner of the same in writing detailing the reasons
for the suspension. The building period shall then be

deemed to be suspended by a period equivalent to the
period that commences from the date the notice was given
to the Owner by the Contractor continuing until the
Contractor recommences Works.
15.2 The Owner must remedy all breaches in the Contractor’s
suspension notice with ten (10) working days of receipt of
such notice.
15.3 The Contractor shall within ten (10) working days of
confirmation that the breaches listed in the suspension
notice have been remedied by the Owner, recommence the
Works,
15.4 In the event that the Contractor incurs any additional cost as
a result of suspending and/or recommencing the Works then
all such additional costs will be deemed as being in addition
to the Contract Price and treated as a variation in
accordance with clause 4.
15.5 For the sake of clarity nothing in this clause 16 shall prevent
the Contractor’s right to terminate this contract in
accordance with the provisions of clause 31.
16. Contract Documents – Discrepancies andAmbiguities
16.1 If either party to this contract finds any discrepancy or
ambiguity in this contract or any other documentation
forming of this contract, then that party must immediately
notify the other party of the same in writing. Upon receipt of
such notice it is agreed that both parties shall confer with
each other in an attempt to resolve the discrepancy or
ambiguity and where necessary the order of precedence
specified in clause 35.15 shall apply.
16.2 If the parties cannot reach resolution over the discrepancy
or ambiguity, theneither:
(a) The matter is to be resolved in accordance with
clause 33; or
(b) The Owner must give to the Contractor sufficient
written instruction to enable the Contractor to proceed
with the Works.

16.3 If, as a consequence of resolution under this clause 17 the
Contract Price needs to vary and the problem that was
resolved was not caused solely by documents provided by
the Contractor then any price adjustment shall be deemed a
variation and the Contractor shall provide to the Owner a
variation document in compliance with clause 4 above.
17. Insurance
17.1 Home Building Compensation Fund Insurance (formerly
known as Home Warranty Insurance): The Contractor must
provide the Owner with a certificate of insurance prior to the
commencement of any Works and before demanding or
receiving any payment (including any deposit). The
Contractor may cancel this contract without penalty if the
Contractor is unable to secure appropriate insurance that is
satisfactory to theContractor.
17.2 Other Insurances: Before the Contractor commences any
Works under this contract the Contractor must also have the
following insurance in place and must maintain such
insurances until completion of the Works (and where
requested by the Owner shall provide the Owner with
evidence that the insurances are current):

a) Public Liability Insurance (to cover liabilities to third
parties for death or personal injury or damage to
property for an amount of not less than $5 million);
b) Employer’s Liability and Worker’s Compensation
Insurance; and
c) Property Damage Insurance and Insurance for the
Works under this contract for replacement for full
reinstatement (including Works in progress and
Materials).

Upon settlement of any claim under these policies the funds are to
be used to allow the Contractor to repair or re-build any
damaged property or Works covered by the policy. In the
event the Contractor is entitled to be paid for any Works
completed prior to the damage occurring.
17.3 The Contractor shall:
(a) In respect of its employee meet all current
requirements of the Worker’s Compensation Act
1987;
(b) Meet all current requirements of the Building Code of
Australia, Australian Standards and New South Wales
legislation;
(c) Maintain during the course of the Works a Contract
Works Insurance policy in the name of the Contractor,
the Owner and the Owner’s lender (if required) for the
full insurable value of the Works such policy to remain
in place until practical completion takes place or the
Owner takes earlier possession of the Worksite.
(d) Maintain during the Works Public Liability Insurance
cover of not less than five million dollars ($5M) for any
once occurrence, and which covers liabilities to third
parties in respect of personal injury, death and loss or
damage to property which may arise out of or in
connection with the carrying out of the Works.
(e) Provide such Home Building Compensation Fund
Insurance (formerly known as Home Warranty
Insurance) as is required under the Home Building
Act.
(f) Provide evidence of all or any of the above policies to
the Owner upon request.
(g) Not have any liability in terms of any loss, claim,
damage, or legal action howsoever arising in respect
of any materials or other property placed on the
Worksite without the Contractor’s knowledge and/or
written approval.

17.4 The insurance referred to in clause 18.1 shall be held with a
reputable Australia insurer, at the discretion of the
Contractor.
17.5 If the Works involve the repair, alteration, or any addition to
an existing building then the Owner shall effect and maintain
during the course of the Works insurance cover for the full
replacement value of any buildings which will be affected by
the Works (including the contents thereof) against loss,
damage and all other usual risks, and shall provide
evidence of the currency of the insurance to the Contractor
upon request. Such cover is to be provided by the Owner
until practical completion or the Owner takes total
possession of the Worksite whichever first occurs.

18. Risk
18.1 For the sake of clarity, the Contractor shall not be liable for
loss or damage to the Works once they have reached
practical completion or if the Owner takes possession of the
Worksite and all risk shall pass to the Owner as soon as
either completion or possession occurs.
18.2 Notwithstanding clause 18 all works or materials supplied by
the Owner or the Owner’s subcontractors at or to the
Worksite shall be at the sole risk of the Owner.
18.3 The installation of some appliances can cause water
hammer or damage to existing pipe work. The Owner
agrees to indemnify the Contractor against any such loss,
damage or claim that may arise if the existing pipe work is
unable to accommodate the installation of theMaterials.
18.4 The Owner acknowledges and agree that where the
Contractor has performed temporary repairs that:
(a) The Contractor offers no guarantee against the
reoccurrence of the initial fault, or any further damage
caused; and
(b) The Contractor will immediately advise the Owner of
the fault and shall provide the Owner with an estimate
for the full repair required.

18.5 The Owner acknowledges that the Contractor is only
responsible for parts that are replaced by the Contractor and
does not at any stage accept any liability in respect of
previous services and/or goods supplied by any other third
party that subsequently fail and found to be the source of
the failure, the Owner agrees to indemnify the Contractor
against any loss or damage to the Materials, or caused by
the Materials, or any part thereof howsoever arising.
18.6 The Owner acknowledges that Materials supplied may:
(a) Fade or change colour over time; and
(b) Expand, contract or distort as a result of exposure to
heat, cold, weather; and
(c) Mark or stain if exposed to certain substances; and
(d) Be damaged or disfigured by impact or scratching;
and
(e) Create undesirable smells caused by a system as a
result of its normal operation.

18.7 Whilst the final location of the condensing unit is at the
discretion of the Owner, a charge will apply as a variation as
per clause 4.3, if the Owner requests the unit to not be
located adjacent to the external wall, due to the
underground piping required.
18.8 The final location of the wall, window or floor unit must be
determined on site by the Owner.
18.9 The Contractor shall upon installation ensure that all
installed Materials meet current industry standards
applicable to noise levels, however the Contractor cannot
guarantee that noise levels will remain constant post
installation as the Materials may be impacted by many
factors such as the weather, lack of maintenance, tampering
etc.
18.10 In the event that any of the equipment needs to be relocated
due to complaints from neighbours or local authorities, then
the Owner shall be responsible for any and all costs
involved.

18.11 The Owner acknowledges and agrees that it is their
responsibility to insure any equipment partly or completely
installed on site, against theft or damage.

18.12 In the event that the electrical wiring is required to be re-
positioned at the request of any third party contracted by the

Owner then the Owner agrees to notify the Contractor
immediately upon any proposed changes. The Owner
agrees to indemnify the Contractor against any additional
costs incurred with such a relocation of electrical wiring. All
such variances shall be invoiced in accordance with clause
4.3.
18.13 All work will be tested to ensure that it is electrically safe
and is in accordance with the wiring rules and other
standards applying to the electrical installation under the
Electrical Safety Regulations. All of the cabling work will
comply with the Australian and New Zealand Wiring
standards.
18.14 The Contractor may at its discretion notify the Owner that it
requires to store at the Worksite Materials, fittings and
appliances, or plant and tools required for the Works, in
which event the Owner shall supply the Contractor a safe
area for storage and shall take all reasonable efforts to
protect all items so stored from possible destruction, theft or
damage. In the event that any such items are destroyed,
stolen or damaged then the cost of repair or replacement
shall be the Owner’s responsibility.
18.15 The Contractor shall not be held responsible for any
damage to the Works caused by outside agents. Where the
Owner requests the Contractor to repair such damage then
the Contractor reserves the right to charge the Owner for
any costs incurred in rectifying such damage and then the
Contractor reserves the right to charge the Owner for any
costs incurred in rectifying such damage.
19. Owner’s Acknowledgements
19.1 The Owner acknowledges that:
(a) All descriptive specifications, illustrations, drawings,
data, dimensions and weights stated in the
Contractor’s or the manufacturer’s fact sheets, price
lists or advertising material, are approximate only and
are given by way of identification only. The Owner
shall not be entitled to rely on such information, and
any use of such does not constitute a sale by
description, and does not form part of the contract,
unless expressly stated as such in writing by the
Contractor;
(b) While the Contractor may have provided information
or figures to the Owner regarding the performance of
the Materials, the Owner acknowledges that the
Contractor has given these in good faith, and are
estimates based on Clean Energy Council (CEC),
Water Efficiency Labelling and Standards (WELS)
scheme and/or industry prescribed estimates. The
water efficiency may be less than estimates due to
factors out of the Contractor’s control (including, but
not limited to, water pressure, water source, the
mineral content of water based on geographical
location, etc.).

20. Owner’s Agent
20.1 Where the Owner specifies an agent in Box L of this
contract then the agent shall be deemed to be acting on
behalf of and with the full authority of the Owner and shall
be responsible for all acts, errors, omissions, directions,
instructions or requested variations as if they were the
actions of the actual Owner. Where requested by the
Contractor the Owner’s agent shall confirm any directions,
instructions or requested variations in writing which
documentation shall be signed by the Owner’s agent.
20.2 The Owner may with the written consent of the Contractor
change the Owner’s agent at any time.
21. Underground Locations
21.1 Prior to the Contractor commencing the Works the Owner
must advise the Contractor of the precise location of all
underground services on the Worksite and clearly mark the
same. The underground mains and services the Owner
must identify include, but are not limited to, electrical
services, gas services, sewer services, pumping services,
sewer connections, sewer sludge mains, water mains,
irrigation pipes, telecommunications cables, fibre optic
cables, oil pumping mains, and any other services that may
be on the Worksite.
21.2 Whilst the Contractor will take all care to avoid damage to
any underground services the Owner agrees to indemnify
the Contractor in respect of all and any liability claims, loss,
damage, costs and fines as a result of damage to services
not precisely located and notified as per clause 22.1.
22. Surplus Materials
22.1 Unless otherwise stated elsewhere in this contract:
(a) Only suitable new Materials will be used;
(b) Demolished materials remain the Owner’s property;
and
(c) Materials which the Contractor brings to the Worksite
which are surplus remain the property of the
Contractor unless such Materials have been paid for
by the Owner.

23. Title
23.1 It is the intention of the Contractor and agreed by the Owner
that ownership of Materials shall not pass until:
(a) The Owner has paid all amounts owing for the
particular Materials; and
(b) The Owner has met all other obligations due by the
Owner to the Contractor in respect of all contracts
between the Contractor and the Owner.

23.2 Receipt by the Contractor of any form of payment other than
cash shall not be deemed to be payment until that form of
payment has been honoured, cleared or recognised and
until then the Contractor’s ownership or rights in respect of
Materials, and this contract, shall continue.
23.3 It is further agreed that:
(a) Where practicable the Materials shall be kept
separate and identifiable until the Contractor shall
have received payment and all other obligations of
the Owner are met; and

(b) Until such time a ownership of the Materials shall
pass from the Contractor to the Owner the Contractor
may give notice in writing to the Owner to return the
Materials or any other interest in the Materials shall
cease; and
(c) The Contractor shall have the right of stopping the
Materials in transit whether or not delivery has been
made; and
(d) If the Owner fails to return the Materials to the
Contractor then the Contractor or the Contractor’s
agent may (as the invitee of the Owner) enter upon
and into land and premises owned, occupied or used
by the Owner, or any premises where the Materials
are situated and take possession of the Materials.
24. Personal Property Securities Act 2009 (“PPSA”)
24.1 In this clause:
(a) Financing statement has the meaning given to it by
the PPSA;
(b) Financing change statement has the meaning given
to it by the PPSA;
(c) Security agreement means the security agreement
under the PPSA created between the Owner and the
Contractor by these terms and conditions; and
(d) Security interest has the meaning given to it by the
PPSA.

24.2 Upon assenting to these terms and conditions in writing the
Owner acknowledges and agrees that these terms and
conditions:
(a) Constitute a security agreement for the purposes of
the PPSA; and
(b) Create a security interest in:
(i) All Materials previously supplied (if any), and that
will be supplied in the future, by the Contractor to
the Owner (if any);
(ii) Any monetary obligations owed by the Owner to
the Contractor for the provision of theWorks.

24.3 The Owner undertakes to:
(a) Promptly sign any further documents and/or provide
any further documents and/or provide any further
information (such information to be complete,
accurate and up-to-date in all respects) which the
Contractor may reasonably require to:
(i) Register a financing statement or financing
change statement in relation to a security interest
on the Personal Property Securities Register;
(ii) Register any other document required to be
registered by the PPSA; or
(iii) Correct a defect in a statement referred to in
clause 25.3(a)(i) or 25.3(a)(ii);
(b) Indemnify, and upon demand reimburse, the
Contractor for all expenses incurred in registering a
financing statement or financing change statement on
the Personal Property Securities Register established
by the PPSA or releasing any registration made
thereby;
(c) Not register a financing change statement in respect
of a security interest without the prior written consent
of the Contractor;

(d) Not register, or permit to be registered, a financing
statement or a financing change statement in relation
to the Materials and/or Works in favour of a third party
without the prior written consent of the Contractor;
and
(e) Immediately advise the Contractor of any material
change in its business practices of selling the
Materials which would result in a change in the nature
of proceeds derived from such sales.

24.4 The Contractor and the Owner agree that sections 96, 115
and 125 of the PPSA do not apply to the security agreement
created by these terms and conditions.
24.5 The Owner hereby waives its rights to receive notices under
sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
PPSA.
24.6 The Owner waives its rights as a grantor and/or a debtor
under sections 142 and 143 of the PPSA.
24.7 Unless otherwise agreed to in writing by the Contractor, the
Owner waives its right to receive a verification statement in
accordance with section 157 of the PPSA.
24.8 The Owner shall unconditionally ratify any actions taken by
the Contractor under clauses 25.3 to 25.5.
24.9 Subject to any express provisions to the contrary nothing in
these terms and conditions is intended to have the effect of
contracting out of any of the provisions in PPSA.
25. Charge on Land
25.1 The Owner hereby agrees to mortgage and/or charge all of
the Owner’s joint and/or several interest in the land where
the Works are to take place to the Contractor or the
Contractor’s nominee to secure all amounts and other
monetary obligations payable under these terms and
conditions. The Owner acknowledges and agrees that the
Contractor (or the Contractor’s nominee) shall be entitled to
lodge where appropriate a caveat, which caveat shall be
withdrawn once all payments and other monetary
obligations payable hereunder have been met.
25.2 Clause 26.1 shall only be applicable where the charge is
created to secure the payment to the Contractor by the
Owner of monies due under the contract where a court or a
tribunal has made an order or judgement that such payment
be made.
26. Warranty
26.1 To the extent required by the Home Building Act, the
Contractor warrants that:
(a) The Works shall be carried out in a proper and
workmanlike manner and in accordance with the
plans and specifications set out in the contract
schedule;
(b) All Materials supplied will be good and, having regard
to the relevant criteria, suitable for the purpose for
which they are used and that, unless otherwise stated
in this contract, those Materials will be new;
(c) The Works will be carried out in an appropriate and
skilful way, with reasonable skill and care;
(d) The Works will be carried out in accordance with the
plans and the specifications to this contract;

(e) If the Works consists of the construction of a
detached dwelling or are intended to renovate, alter,
extend, improve or repair a home to stage suitable for
occupation, that the detached dwelling or home will
be suitable for occupation when the Works are
finished;
(f) If the contract states the particular purpose for which
the Works are required, or the result which the Owner
wishes the Works to achieve (so as to show that the
Owner relies on the Contractor’s skill and judgement)
then the Works and any Materials will be reasonably
fit for that purpose or will be of such a nature and
quality that they might reasonably be expected to
achieve that result; and
(g) The Provisional Sum has been calculated with
reasonable care and skill, having regard to all the
information reasonably available when the Contract is
entered into (including information about the nature
and location of the Worksite).

26.2 Clause 27.1(b) does not apply if the Contractor is subject to
the direction of the Owner’s architect for the supply of
Materials, or the Owner is responsible for nominating the
Materials and either;
(a) There are no reasonable grounds for not using the
Materials; or
(b) There are reasonable grounds for not using the
Materials and the Contractor advises the Owner of
such in writing and Owner still insists on the Materials
being used.

26.3 The Contract also warrants that all Works done under this
contract will comply with:
(a) Home Building Act 1989 (section 18B), the Building
Code of Australia and shall be carried out in
accordance with all relevant laws and legal
requirements (to the extent required under the
Environmental Planning and Assessment Act 1979,
including any regulation or other instrument made
under that Act, the Electricity (Consumer Safety) Act
2004, and the Plumbing and Drainage Act 2011); and
(b) All other relevant codes, standards and specifications
that the Works are required to comply with under any
law; and
(c) The conditions of any relevant development consent
or complying development certificate.

26.4 Despite clause 27.3, this contract may limit the liability of the
Contractor for a failure to comply with clause 27.3 if the
failure solely relates to:
(a) A design or specification prepared by or on behalf of
the Owner (but not by or on behalf of the Contractor);
or
(b) A design or specification required by the Owner, if the
Contractor has advised the Owner in writing that the
design or specification contravenes clause 27.3.
26.5 The following conditions are applicable to the warranties
given above:
(a) The warranty shall not cover any defect or damage
which may be caused or partly caused by or arise
through;

(i) Failure on the part of the Owner to properly
maintain the Work; or
(ii) Failure on the part of the Owner to follow any
instructions or guidelines provided by the
Contractor, or
(iii) The continued use of the Works after any defect
becomes apparent or would have become
apparent to a reasonably prudent operator or
use; or
(iv) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Contractor shall
thereafter in no circumstances be liable under the
terms of the warranty if the Contractor’s workmanship
is repaired, altered or rectified without the
Contractor’s consent.
(c) In respect of all claims the Contractor shall not be
liable to compensate the Owner for any delay in either
replacing or repairing the workmanship or in properly
assessing the Owner’s claim.

26.6 For Materials not manufactured by the Contractor the
warranty shall be the current warranty provided by the
manufacturer of the Material. The Contractor shall be under
no liability whatsoever except for the express conditions as
detailed and stipulated in the manufacturer’swarranty.
27. The Commonwealth Competition and Consumer Act
2010, Home Building Act 1989, Home Building Regulations
2004, and Fair Trading Acts
27.1 Nothing in this contract is intended to have the effect of
contracting out of any applicable provisions of the
Commonwealth Competition and Consumer Act 2010,
Home Building Act 1989, Home Building Regulations 2004,
and Fair Trading Acts in each of the States and Territories of

Australia (including any substitute to those Acts of re-
enactment thereof), except to the extent permitted by those

Acts where applicable.
28. Intellectual Property
28.1 Where the Contractor has designed, drawn and written
plans or a schedule of Works for the Owner, then the
copyright in those plans, schedules, designs and drawings
shall remain vested in the Contractor, and shall only be
used by the Owner at the Contractor’s discretion.
28.2 The Owner warrants that all designs or instructions to the
Contractor will not cause the Contractor to infringe any
patent, registered design or trademark in the execution of
the Owner’s order.
28.3 The Owner hereby authorises the Contractor to utilise
images of the Works designed or drawn by the Contractor in
advertising, marketing, or competition material by the
Contractor.
29. Default and Consequences of Default
29.1 Interest on overdue invoices shall accrue daily from the date
when payment becomes due, until the date of payment, at a
rate of two and a half percent (2.5%) per calendar month
(and at the Contractor’s sole discretion such interest shall
compound monthly at such a rate) after as well as before
any judgement.

29.2 If the Owner owes the Contractor any money the Owner
shall indemnify the Contractor from and against all costs
and disbursements incurred by the Contractor in recovering
the debt (including but not limited to internal administration
fees, legal costs on a solicitor and own client basis, the
Contractor default fees, and bank dishonour fees).
29.3 Further to any other rights or remedies the Contractor may
have under this contract, if the Owner has made payment to
the Contractor, and the transaction is subsequentlyreversed
or cancelled, the Owner shall be liable for the amount of the
reversed or cancelled transaction, in addition to any further
costs incurred by the Contractor under this clause 30, where
it can be proven that such reversal or cancellations is found
to be illegal, fraudulent or in contravention to the Owner’s
obligations under this contract.
29.4 Without prejudice to any other remedies the Contractor may
have, if at any time the Owner is in breach of any obligation
(including those relating to payment) under these terms and
conditions the Contractor may suspend or terminate the
provision of Works to the Owner. The Contractor will not be
liable to the Owner for any loss or damage the Owner
suffers because the Contractor has exercised its rights
under this clause.
29.5 Without prejudice to the Contractor’s other remedies at law,
the Contractor shall be entitled to cancel all or any part of
the Works which remains unperformed and all amounts
owing to the Contractor shall, whether or not due for
payment, become immediately payable in the eventthat:
(a) The Owner becomes unable to pay their debts or
bankrupt; or
(b) Enters into an arrangement with, or makes an
assignment for the benefit of their creditors; or
(c) A receiver, manager, liquidator (provisional or
otherwise) or similar person is appointed in respect of
any asset of the Owner.

30. Termination
30.1 Neither party to this contract may terminate the contract if
that party is themselves in substantial breach of this contract
(i.e. that party fails or refuses to perform a substantial
obligation under this contract).
30.2 The Owner may serve notice of their intent to terminate this
contract if the Contractor:
(a) Fails to perform the Works in a competent or diligent
manner;
(b) Suspends the Works for any reason other than is
allowed under this contract;
(c) Refuses to replace any defective Materials or remedy
any defective Works so as to negatively impact on the
Works;
(d) Has the Contractor’s licence cancelled or suspended;
(e) Fails to effect or maintain any insurance that is
required under this contract;
(f) Fails or refuses to complete the Woks or abandons
this contract;
(g) Is otherwise in substantial breach of this contract.
30.3 If the Owner serves notice on the Contractor under clause
31.2 then such notice must:

(a) Contain full details of the alleged breach or breaches;
and
(b) State that it is the Owner’s intention to terminate the
contract unless the Contractor has remedied all such
breached within ten (10) working days of receipt by
the Contractor of such notice.

30.4 The Contractor may serve notice of their intent to terminate
this contract if the Owner:
(a) Fails to comply with the Owner’s obligations under
clauses 3, 5, 7, 8, 10, 11, 14, 15, or 18 (each as
applicable to this contract);
(b) Is otherwise in substantial breach of this contract.
30.5 If the Contractor serves notice on the Owner under clause
31.4 then such notice must:
(a) Contain full details of the alleged breach or breaches;
and
(b) State that it is the Contractor’s intention to terminate
the contract unless the Owner has remedied all such
breaches within ten (10) working days of receipt by
the Owner of such notice.

30.6 If either party to this contract is given notice by the other
party to this contract that they are in substantial breach of
this contract and does not rectify or attempt to substantially
rectify any breach stated in the notice within ten (10)
working days or receiving such notice, then the party giving
the notice by giving a separate notice to the other party
terminate this contract.
30.7 If the contract is ended under this clause 31, the Contractor
is entitled to a reasonable amount for any Works already
carried out plus any other costs incurred by the Contractor
as a result of, or prior to, the termination of the contract,
including, but not limited to:
(a) The cost of any Materials already purchased for the
Works, or ordered from the Contractor’s suppliers
which cannot be returned to the Contractor’s
suppliers, or for which the order cannot be cancelled;
(b) Any restocking fees charged by the Contractor’s
suppliers;
(c) Any additional costs incurred by the Contractor
through having to quit the Worksite early;
(d) The Contractor’s margin (i.e twenty percent (20%)) on
any monies that become due and payable as a result

of the application of this clause 31.7 excluding sub-
clauses (b) and (e);

(e) Ten percent (10%) of the contract price; and
(f) Any default interest, fees or charges that the
Contractor is entitled to charge, or incurs, under
clause 30.

30.8 Notwithstanding clause 31.7, where the Contractor has
already taken a deposit from the Owner and the deposit
amount is in excess of the monies to which the Contractor is
entitled under clause 31.7 then the Contractor agrees to
refund all monies in excess of the amount due to the
Contractor to the Owner within five (5) working days of the
termination of this contract.
30.9 Either the Owner or the Contractor may terminate this
contract upon written notice if the other party:
(a) Becomes insolvent or is unable to pay their debts;
(b) Commits an act of bankruptcy or is made bankrupt;

(c) Assigns assets for the benefit of creditors generally;
(d) Makes a composition or other arrangement with
creditors; or
(e) Enters into liquidation or receivership.
31. Privacy Act 1988
31.1 The Owner agrees for the Contractor to obtain from a credit
reporting body (CRB) a credit report containing personal
credit information (e.g. name, address, D.O.B, occupation,
previous credit applications, credit history) about the Owner
in relation to credit provided by theContractor.
31.2 The Owner agrees that the Contractor may exchange
information about the Owner with those credit providers and
with related body corporates for the followingpurposes:
(a) To assess an application by the Owner, and/or
(b) To notify other credit providers of a default by the
Owner, and/or
(c) To exchange information with other credit providers
as to the status of this credit account where the
Owner is in default with other credit providers; and/or
(d) To assess the creditworthiness of the Owner including
the Owner’s repayment history in the preceding two
(2) years.

31.3 The Owner consents to the Contractor being given a
consumer credit report to collect overdue payment on
commercial credit.
31.4 The Owner agrees that personal credit information may be
used and retained by the Contractor for the following
purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Owner’s
credit, payment and/or status in relation to the
provision of Works; and/or
(c) processing of any payment instructions, direct debit
facilities and/or credit facilities requested by the
Owner; and/or
(d) enabling the collection of amounts outstanding in
relation to the Materials.

31.5 The Contractor may give information about the Owner to a
CRB for the following purposes:
31.6 The information given to the CRB may include:
(a) Personal information as outlined in 32.1 above;
(b) Name of the credit provider and that the Contractor is
a current credit provider to the Owner;
(c) Whether the credit provider is a licensee;
(d) Type of consumer credit;
(e) Details concerning the Owner’s application for credit
or commercial credit (e.g. date of
commencement/termination of the credit account and
the amount requested);
(f) Advice of consumer credit defaults, overdue
accounts, loan repayments or outstanding monies
which are overdue by more than sixty (60) days and
for which written notice for request of payment has
been made and debt recovery action commenced or
alternatively that the Owner no longer has any
overdue accounts and the Contractor has been paid
or otherwise discharged and all details surrounding
that discharge (e.g. dates of payments);

(g) Information that, in the opinion of the Contractor, the
Owner has committed a serious credit infringement;
(h) Advice that the amount of the Owner’s overdue
payment is equal to or more than one hundred and
fifty dollars ($150).

31.7 The Owner shall have the right to request (by e-mail) from
the Contractor:
(a) a copy of the information about the Owner retained by
the Contractor and the right to request that the
Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal
information about the Owner for the purpose of direct
marketing.

31.8 The Contractor will destroy personal information upon the
Owner’s request (by e-mail) or if it is no longer required
unless it is required in order to fulfil the obligations of this
contract or is required to be maintained and/or stored in
accordance with the law.
31.9 The Owner can make a privacy complaint by contacting the
Contractor via e-mail. The Contractor will respond to that
complaint receipt of the complaint. In the event that the
Owner is not satisfied with the resolution provided, the
Owner can make a complaint to the Information
Commissioner atwww.oaic.gov.au.
32. Dispute Resolution
32.1 If a dispute arises between the parties to this contract,
then either party shall send to the other party a notice of dispute in
writing adequately identifying and providing details of the dispute.
Within fourteen (14) days after service of a notice of dispute, the
parties shall confer at least once, to attempt to resolve the dispute.
At any such conference each party shall be represented by a
person having authority to agree to a resolution of the dispute. In
the event that the dispute cannot be so resolved either party may
by further notice in writing delivered by hand or sent by certified
mail to the other party refer such dispute to the Office of Fair
Trading for assistance in the resolution of thedispute.
32.2 Where there is any dispute between the parties, whether
relating to overdue payment or otherwise then the Owner
agrees not to contract any third party to replace the
Contractor as their provider of the Works to be supplied
under this contract until the dispute resolution process in
clause 33.1 has been completed, and then only if the Office
of Fair Trading has found against the Contractor in its
determination, and the Contractor is unable or unwilling to
resolve, rectify or correct the issue that have led the officeof
Fair Trading to find against the Contractor.
33. Service of Notices
33.1 Any written notice given under this contract shall be deemed
to have been given and received:
(a) By handling the notice to the other party, in person;
(b) By leaving it at the address of the other party as
stated in this contract;
(c) By sending it by registered post to the address of the
other party as stated in this contract;
(d) If sent by facsimile transmission to the fax number of
the other party as stated in this contract (if any), on
receipt of confirmation of the transmission;

(e) If sent by email to the other party’s current email
address.

33.2 Any notice that is posted shall be deemed to have been
served, unless the contrary is shown, at the time when by
the ordinary course of post, the notice would have been
delivered.
34. General
34.1 For the purposes of this contract, a “working day” shall
mean any day which is not a Saturday, Sunday, public
holiday, special holiday, or a bank holiday in the state in
which this contract is applied. If the giving of any notice, the
making of any payment, or the doing of any act required or
permitted under this contract, the timing of which falls on a
day which is not a working day, then the timing for such
actions shall be extended and will be allowed to take place
on the next working day, but no later.
34.2 The failure by either party to enforce any provision of these
terms and conditions shall not be treated as a waiver of that
provision nor shall it affect that party’s right to subsequently
enforce that provision. If any provision of these terms and
conditions shall be invalid, void, illegal or unenforceable the
validity, existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or
impaired.
34.3 If any provisions of this contract are inconsistent with the
PPSA, the PPSA shall prevail to the extent of the
inconsistency.
34.4 This contract shall be governed by the laws of New South
Wales and are subject to the jurisdiction of the Hornsby
Court in New South Wales.
34.5 Subject to clause 8, the Contractor shall be under no liability
whatever to the Owner for any indirect loss and/or expenses
(including loss of profit) suffered by the Owner arising out of
a breach by the Contractor of this contract.
34.6 Subject to clause 27, in the event of any breach of this
contract by the Contractor the remedies of the Owner shall
be limited to damages (including (where applicable)
liquidated damages under clause 8) which under no
circumstances shall exceed the Contract Price.
34.7 The Owner shall not be entitled to set off against or deduct
from the Contract Price any sums owed or claimed to be
owed or claimed to the Owner by the Contractor, not to hold
any retention/s for defect or omissions.
34.8 Where more than one Owner has entered into this contract,
the Owners shall be jointly and severally liable for all
payments of the Contract Price.
34.9 None of the Contractor’s agents or representatives are
authorised to make any representations, statements,
conditions, conditions or agreements not expressed by the
manager of the Contractor in writing nor is the Contractor
bound by any such unauthorised statements.
34.10 The Contractor may licence and/or assign all or any part of
its rights and/or obligations under this contract without the
Owner’s consent.
34.11 The Owner cannot assign or licence without the written
approval of the Contractor.
34.12 The Contractor may elect to subcontract out any part of the
Works but shall not be relieved from any liability or

obligation under this contract by so doing. Furthermore, the
Owner agrees and understands that they have no authority

to give any instruction to any of the Contractor’s sub-
contractors without the authority of the Contractor.

34.13 The Owner agrees that the Contractor may review this
contract by notifying the Owner in writing. If, following any
such review, there is to be any change to this contract, then
that change will take effect from the date on which the
Owner accepts such changes, or otherwise at such time as
the Owner makes a further request for the Contractor to
provide Works to the Owner.
34.14 Neither party shall be liable for any default due to any act of
God, war, terrorism, fire, flood, storm, industrial dispute, civil

unrest, or other event beyond the reasonable control of
either party.
34.15 The special conditions in Box T above (if any), the terms of
this contract, the specifications, the plans, and any other
documents have precedence in that order if there is any
inconsistency or ambiguity between them. Figured
dimensions shall have precedence over scaled dimensions.


SECTION 23 - CONTACT INFORMATION 
Questions about the Terms of Service should be sent to us at info@provenair.com.au