HCS Terms and Conditions
Heavy Construction Solutions (Aust) Pty Ltd (“HEAVY CONSTRUCTION SOLUTIONS”) provides professional Digital Engineering, Utility Locating and Surveying services (“the services”) to the Client (as noted on the quote form) (“the Client”) under commercial arrangements in accordance with the following Standard Terms and Conditions.
The Client agrees to be bound by and comply with the Standard Terms and Conditions as outlined below.
1. SCOPE OF WORKS
The Client shall provide to HEAVY CONSTRUCTION SOLUTIONS all necessary information and specifications relating to the Client’s requirements for the project (“Scope of Works”). The nature and extent of the services which HEAVY CONSTRUCTION SOLUTIONS provides to the Client shall be determined based on this Scope of Works. The Scope of Works shall be fully documented and agreed upon by HEAVY CONSTRUCTION SOLUTIONS and the Client prior to the provision of the services.
2. PROJECT TEAM
HEAVY CONSTRUCTION SOLUTIONS will provide a Project Team capable of providing the services specified in the Scope of Works. Members of the Project Team may vary from time to time subject to availability, requirements of other HEAVY CONSTRUCTION SOLUTIONS projects, leave requirements, specific skill sets applicable to different stages of the project, and other factors which may arise from time to time.
The fees for the project will be based upon the hourly and/or fixed rates as agreed in writing between HEAVY CONSTRUCTION SOLUTIONS and the Client in respect of the provision of equipment, labour and ancillary services.
4. OPERATING HOURS
Standard operating hours are between 06:00 and 18:00 Monday to Friday. Unless otherwise agreed between HEAVY CONSTRUCTION SOLUTIONS and the Client, HEAVY CONSTRUCTION SOLUTIONS will endeavour to complete all services during standard operating hours. If a situation arises which requires services to be provided outside the standard operating hours, reasonable attempts will be made by HEAVY CONSTRUCTION SOLUTIONS to gain prior approval from the Client.
No amendment or variation of the HEAVY CONSTRUCTION SOLUTIONS standard terms and conditions is valid and binding on HEAVY CONSTRUCTION SOLUTIONS unless it is in writing and signed by a director or other authorised officer of HEAVY CONSTRUCTION SOLUTIONS.
A provision of the HEAVY CONSTRUCTION SOLUTIONS standard terms and conditions may not be waived except in writing and signed by a director or other authorised officer of HEAVY CONSTRUCTION SOLUTIONS. No waiver or breach of any provision of the HEAVY CONSTRUCTION SOLUTIONS standard terms and conditions shall constitute a waiver or breach of any other provision.
The Client shall reimburse HEAVY CONSTRUCTION SOLUTIONS for all expenses reasonably and properly incurred in connection with the services provided to the project. Such disbursements shall include but not be limited to consumables, air travel and freight, accommodation, title and survey searching fees, data licence fees and the like.
8. PAYMENT TERMS
The Client shall pay the fees, including GST without any set-off or counterclaim whatsoever, to HEAVY CONSTRUCTION SOLUTIONS within thirty (30) days of the date of the HEAVY CONSTRUCTION SOLUTIONS invoice. Invoices will be submitted by HEAVY CONSTRUCTION SOLUTIONS on either a weekly, bi-monthly or monthly basis, depending upon the nature of the project.
9. VARIATION TO COSTS
If the Scope of Works for the provision of services is amended, HEAVY CONSTRUCTION SOLUTIONS shall be entitled to review the value of the fees previously agreed, and the Client shall be obliged to pay all additional costs associated with such amended scope as is agreed in writing between HEAVY CONSTRUCTION SOLUTIONS and the Client. HEAVY CONSTRUCTION SOLUTIONS will only accept variation work from the Client’s duly authorised representative. Where not instructed by the Client in writing, the HEAVY CONSTRUCTION SOLUTIONS works docket shall affect the authorisation that variation works have been carried out as described. Variation charges apply for meetings and/or briefings, calculations, plan checking, issue of RFI’s, field survey work, quality assurance checks and processes, plans and/or sketches, delivery of survey data and filing. The minimum site visit fee will also apply for variations.
Goods and Services Tax (GST) shall be paid on the HEAVY CONSTRUCTION SOLUTIONS fees in accordance with the current taxation laws. The amount of GST applicable to the fees will be identified separately in any fee proposal, and all Tax Invoices.
11. OVERDUE PAYMENTS
HEAVY CONSTRUCTION SOLUTIONS shall be entitled to charge interest on the outstanding fees, the percentage rate being the current Westpac 30 Day Bank Bill Rate plus three (3) per cent. Payment of the interest charges will not relieve the Client of the obligation to pay the outstanding fees. In relation to any Building and or Construction projects, all claims for payment made by HEAVY CONSTRUCTION SOLUTIONS shall be subject to the Construction Contracts Act 2004 (WA) or the equivalent legislation in the state in which the Scope of Works is completed.
12. SET OFF
The Client agrees and irrevocably authorises HEAVY CONSTRUCTION SOLUTIONS to apply, or set-off, against the Client’s account under this Agreement any sums which may be owed to the Client by any company within HEAVY CONSTRUCTION SOLUTIONS group of companies.
13. LEGAL COSTS
All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by HEAVY CONSTRUCTION SOLUTIONS in respect of this Agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Client failing to perform its covenants and obligations contained herein, shall be paid by the Client to HEAVY CONSTRUCTION SOLUTIONS. The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector. The Client agrees that it is liable for and will pay any stamp duty assessed on this document.
If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under these terms and conditions, all monies owed by the Client to HEAVY CONSTRUCTION SOLUTIONS shall become immediately due and payable.
15. COPYRIGHT RETAINED
HEAVY CONSTRUCTION SOLUTIONS shall retain copyright in all proposals, tenders, documents, drawings, calculations, designs, plans and data (“the Data”) prepared by it in relation to the project, and in any works executed from them. HEAVY CONSTRUCTION SOLUTIONS also reserves all present and future moral rights in all intellectual property in the Data, and in any works executed or to be executed from them. The Data must not be given, reproduced or disseminated, to any person, public authority, institution or organisation without the express permission of a duly authorised representative of HEAVY CONSTRUCTION SOLUTIONS.
16. LICENCE TO USE THE DATA
HEAVY CONSTRUCTION SOLUTIONS shall grant the Client a license to use the Data in connection with the project, conditional upon the following:
- The licence applies only to the project or that part of the project to which the Data relates;
- HEAVY CONSTRUCTION SOLUTIONS has completed the particular stage or stages of the project for which HEAVY CONSTRUCTION SOLUTIONS has been commissioned; and
- All fees properly due to HEAVY CONSTRUCTION SOLUTIONS have been paid.
17. EMPLOYMENT OF HEAVY CONSTRUCTION SOLUTIONS PERSONNEL
Approaches made whether directly or indirectly to HEAVY CONSTRUCTION SOLUTIONS personnel regarding employment opportunities with the Client or a related entity or associate of the Client (as defined in the Corporations Act) during the provision of services by HEAVY CONSTRUCTION SOLUTIONS to the Client, or within 12 months of cessation of those services, would place those individuals in breach of their HEAVY CONSTRUCTION SOLUTIONS Employment Contracts. Consequently, irrespective of which party initiates discussions in this regard, the process for determining an equitable outcome for all parties shall be as follows:
- Should the Client or a related entity or associate of the Client (as defined in the Corporations Act) wish to make an Employment Offer to a HEAVY CONSTRUCTION SOLUTIONS employee, the Client shall ensure direct contact in the first instance should be made with the HEAVY CONSTRUCTION SOLUTIONS Operations Manager responsible for that project.
- The HEAVY CONSTRUCTION SOLUTIONS Operations Manager will then act as the point of liaison between the Client or a related entity or associate of the Client (as defined in the Corporations Act) and the respective HEAVY CONSTRUCTION SOLUTIONS employee in relation to the offer, as well as in relation to the logistics of the transfer of employment should the offer be accepted.
- The Client shall acknowledge that HEAVY CONSTRUCTION SOLUTIONS develops and trains its employees to a high standard in order to provide the highest level of service to its Clients. Accordingly, should any offer of employment by the Client or a related entity or associate of the Client (as defined in the Corporations Act) to an HEAVY CONSTRUCTION SOLUTIONS employee be accepted, the Client shall recompense HEAVY CONSTRUCTION SOLUTIONS to the value of 25% of the total remuneration package offered and accepted by the employee.
18. DISPUTE RESOLUTION
In the event of a dispute between the parties, either party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each party meet and attempt to settle the dispute within five (5) working days. If the dispute is not settled by the senior representatives within ten (10) working days of the service of the notice, the parties shall agree to refer the dispute to mediation by a single mediator. Either party may initiate mediation, the costs of which shall be shared equally by the parties. If the parties cannot agree upon the identity of the mediator, the dispute shall be referred for mediation to a mediator nominated by the Institute of Mediators and Arbitrators.
HEAVY CONSTRUCTION SOLUTIONS may terminate the Agreement entered into with the Client:
- If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under that Agreement
- In the event of monies payable to HEAVY CONSTRUCTION SOLUTIONS pursuant to these terms and conditions being outstanding for more than thirty (30) days;
- In the event of any other breach by the Client of its obligations under such Agreement, which breach is not remedied within thirty (30) days of written notice from HEAVY CONSTRUCTION SOLUTIONS requiring the breach to be remedied;
- In the event the Client requires HEAVY CONSTRUCTION SOLUTIONS to act unlawfully or unethically, or fails to provide an adequate Scope of Works and associated instructions;
- Upon giving the Client thirty (30) days written notice of its intention to do so; and
- If the Client takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs.
The Client may terminate its obligations under any Agreement entered into with HEAVY CONSTRUCTION SOLUTIONS:
- In the event of a breach by HEAVY CONSTRUCTION SOLUTIONS of its obligations under such Agreement, which breach is not remedied within thirty (30) days of written notice from the Client requiring the breach to be remedied;
- Upon giving HEAVY CONSTRUCTION SOLUTIONS thirty (30) days written notice of its intention to do so.
If the Agreement is terminated by either party, the Client is still obligated to pay all monies owed to HEAVY CONSTRUCTION SOLUTIONS for services performed up to and including the date of termination pursuant to these terms and conditions as well as for the costs incurred by HEAVY CONSTRUCTION SOLUTIONS in relation to demobilising personnel and equipment from site.
20. PROJECT SITE – CONSTRUCTION & BUILDING & CIVIL
The project site must be prepared by the Client prior to any survey works commencing. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein. Specifically, the Client must ensure that the working area is clear, dry, clean and free of materials, plant and equipment, and above all, a safe working environment. HEAVY CONSTRUCTION SOLUTIONS shall not be providing task lighting, scaffold, stairs or the like on the designated project site.
21. PROJECT SITE – HEAVY CONSTRUCTION SOLUTIONS
Access arrangements to the site are to be the responsibility of the Client. The price quoted assumes that access to the site will be unhindered. The Client must ensure that the site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers are communicated to HEAVY CONSTRUCTION SOLUTIONS before entry to the site. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein.
22. NO WARRANTIES
Notwithstanding anything contained herein the Client acknowledges that no representation, warranty or condition, express or implied, is given by HEAVY CONSTRUCTION SOLUTIONS that the services provided comply with the rules, regulations, laws and legislation of the place where the services are being provided and HEAVY CONSTRUCTION SOLUTIONS will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the services not complying with such rules, regulations, laws and legislation, or by reason of or arising out of any inaccuracy, error or omission in the information provided by or to HEAVY CONSTRUCTION SOLUTIONS.
Where the Australian Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of HEAVY CONSTRUCTION SOLUTIONS for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to either supply of the services again or payment of the cost of having the services supplied again (as HEAVY CONSTRUCTION SOLUTIONS may determine).
The Client hereby in favour of HEAVY CONSTRUCTION SOLUTIONS charges and mortgages with the due and punctual payment of all monies due to HEAVY CONSTRUCTION SOLUTIONS and the due and punctual and complete performance of all its liabilities and obligations herein or on any account whatsoever all its legal and equitable interest of whatsoever nature held in any real property both present and future and the Client hereby consents to HEAVY CONSTRUCTION SOLUTIONS lodging a caveat or caveats noting its proprietary interest hereunder.
24. SECURITY INTEREST
The Client grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Client, in favour of HEAVY CONSTRUCTION SOLUTIONS to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
For the purpose of this clause and other relevant clauses in this Agreement “PPSA” means the Personal Property Securities Act 2009 and the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
(i) If requested by HEAVY CONSTRUCTION SOLUTIONS the Client must immediately sign any documents, provide all necessary information and do anything else required by HEAVY CONSTRUCTION SOLUTIONS to ensure that the security interest created in HEAVY CONSTRUCTION SOLUTIONS favour is a perfected security interest. (ii) The Client must not grant any other security interest in favour of any party until HEAVY CONSTRUCTION SOLUTIONS has perfected its security interest created under this Agreement.
- The Client must not do or permit anything to be done that may result in the security interest granted to HEAVY CONSTRUCTION SOLUTIONS ranking in priority behind any other security interest.
- To the fullest extent permitted by the PPSA the Client agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply. (v) The Client hereby waives any rights the Client may otherwise have to:
- receive any notices or statements the Client would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
- apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
- object to a proposal of the Client to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
- receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
The Client warrants and agrees that where it is, at the time of executing this document or at any time thereafter, a trustee of any trust (the “Trust”):- (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by HEAVY CONSTRUCTION SOLUTIONS; (b) that it has full power and authority to execute, or continue with its obligations under, this Agreement on behalf of the Trust as it is doing so in its individual capacity and in its several capacity as trustee; (c) that it shall be bound by the terms and conditions of this Agreement in its individual capacity, or further or alternatively, in its several capacity as trustee; and (d) that the assets of the Trust shall be available to meet payment of its obligations to HEAVY CONSTRUCTION SOLUTIONS.
If the Client (a) defaults in the due and punctual observance of all or any of its obligations or covenants under this agreement; or (b) takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Client to HEAVY CONSTRUCTION SOLUTIONS shall become immediately due and payable without prejudice to any right or remedies open to it may:
- treat as discharged all or any obligation arising from any agreement with the Client;
- retain any security given or monies paid by the Client or available though the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Client to HEAVY CONSTRUCTION SOLUTIONS;
- appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clauses 23 and 24 above or any part of the charged property. The receiver so appointed shall be the agent of the Client and the Client shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Client have all the powers conferred on a receiver under the Corporations Act 2001; (d) exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this agreement.
27. JOINT AND SEVERAL LIABILITY
If the Client comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.
The relationship between HEAVY CONSTRUCTION SOLUTIONS and the Client shall be governed and construed in accordance with the laws of the state in which the Scope of Works is completed and the parties shall submit to the jurisdiction of the Courts of that state and waives any right to object to any proceedings being brought in those Courts.
If any part of these terms and conditions become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of the terms and conditions will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these terms and conditions.
To give effect to its obligations under this Agreement the Client hereby irrevocably appoints any solicitor for HEAVY CONSTRUCTION SOLUTIONS, from time to time, as its attorney to do any act or thing which they are required to do under this Agreement.
Where there is any inconsistency between these terms and conditions and any of the Client’s prior or subsequent terms and conditions, the terms and conditions herein prevail.