The quotation is based upon the Conditions of Quotation, set out below, and Terms of Sales and Terms of Hire at the end of this document. Unless specifically agreed otherwise, where there is a conflict between your conditions and our Terms and Conditions, our Terms and Conditions shall take precedence.
1. APPLICATION
Our offer is valid for up to 30 days from submission. Unless we agree otherwise in writing, the relevant quotation and these terms and conditions will be the basis of Contract. Upon acceptance of this offer, by way of placing a purchase order or otherwise, these enclosed terms and conditions are deemed accepted and will remain in force until a formal Contract document (if any) incorporating these standard terms and conditions is in place and both parties are in receipt of a duly executed copy. In the case of a Contract being a sub-contract agreement, the head contract conditions (if any) have not been considered and are not part of this agreement/sub-contract.
Applicable terms and conditions of Contract for Supply and Install shall be the Australian Standard General Conditions for supply of equipment and installation) AS4910- 2002 (incorporating Amendment 1) and amendments to reflect these standard terms and conditions [“AS4910”].
Irrespective of any other clause to the contrary, in the event there is any ambiguity or conflict between these standard terms and conditions and those contained in any documents in the request for tender, the AS4910 or other relevant documents, the order of precedence to resolve the ambiguity or conflict shall be:-
- These Standard Terms and Conditions;
- Our written responses to the tender and any ancillary documents;
- AS4910-2002 (incorporating Amendment 1);
- The request for tender and other ancillary documents; and
- The terms and conditions attached to a purchase order, if
“our”, “us” and “we” means RB Scaffolding Pty Ltd or a related company performing the work.
“you” means the party engaging us as a contractor (or sub-contractor) pursuant to these standard terms and conditions.
2. TAXES
Any Government taxes, charges or imposts shall increase the price of this quotation unless otherwise specified. All prices and fees quoted are exclusive of any Goods and Services Tax (or value add tax) applicable.
3. LIQUIDATED AND GENERAL DAMAGES
To the maximum extent permitted by law, our liability for any applicable damages or losses in relation to, arising out of or as a consequence of this Contract, whether in contract, tort (including negligence), under statute, pursuant to an indemnity, in equity or otherwise, and whether arising in connection with one or more events, will be limited to the greater of 25% of the contract sum or any amounts recovered under any insurance policy required to be effected under this Contract, or, where we have failed to comply with our obligations of this Contract or the terms of the relevant insurance policy, the amount that, but for our failure, would have been recovered under the relevant insurance policy or policies. These limitations will not apply to any liability for death or injury to persons due to our acts or omissions or for our fraudulent or criminal actions. Where applicable, Liquidated damages will be your sole remedy for any delay in connection with the Contract and will be limited to 2.5% of the Contract sum. Delay damages, whether liquidated or otherwise, do not apply to scaffolding.
You are not permitted to make any deduction for damages or losses from interim payments (Progress Claims) as you have no right of set-off or back-charges unless/until prior written agreement or a mediated settlement is reached.
4. TERMS OF PAYMENT
Progress Claims will include for permanent materials, fabricated or in raw condition, held on or off site, subject to proper documentation and insurance. The Progress Claim may include unfixed materials and Work done off site to the end of the month concerned.
Progress Claims will be made monthly and payment must be made by you within 30 days from the date of the Progress Claim. All Progress Claims are made under the Building Industry Fairness (Security of Payment) Act (QLD) 1999 or in accordance with equivalent Acts in the appropriate States or Territories (“SOPA”).
The absence of a signed contract shall not hinder payment of the above sums or Progress Claims.
Ownership of designs, materials and services provided by us shall remain with us and will only be transferred (for materials and services) and licensed (for designs) for the use in the head contract works only upon the full payment by you of all of the monies claimed in respect of those designs, materials and services (as applicable). Interest will be charged at 15% per annum pro-rata for late payments.
5. FIXED PRICE
Our quoted price/rates are fixed provided our works are completed by agreed completion date (Contract works completion for our trade). In the event this date is passed then our firm price/rates shall be escalated by at least the (All Groups) Consumer Price Index (weighted average of eight cities) for the previous quarter just ended before the agreed completion date.
6. RETENTION OF SECURITY
No allowance has been made for any Retention Security, however, if required, we will need to increase our quoted rates/price to allow for same. Once allowance has been made, we will provide, upon request, security in the form of a Bank Guarantee (or other relevant vehicle as agreed) to the total value of 5% of the Contract sum. The Bank Guarantee is to be released at the practical completion of our works
7. MOBILISATION, HIRE PERIOD(S) & PRACTICAL COMPLETION OF OUR WORKS
Unless otherwise stated, the Contract is based on our normal lead in times for a Supply and Install contract of a minimum of 14 calendar days, or as otherwise stated in accordance with our offer. Commencement of these periods will be dictated by the receipt of the agreed form of Contract, reasonable access to site to complete the works and “for Construction” electronic drawings.
Hire of the scaffold shall be chargeable from the date each relevant section of scaffolding is erected. The Weekly Hire charges shall continue until you advise us in writing that each relevant section of scaffold is “off hired”. The date upon which you advise us of each relevant section of the scaffold being “off-hired” shall, in all cases, be treated as a full day’s hire.
Practical completion of our works means that date or dates when we dismantle all scaffolding following at least 7 days’ written notice of the date(s) from you upon which you require each relevant section of the scaffold to be “off-hired”. You will give us We will give you at least 7 days’ written notice of the date(s) upon which we require each relevant section of the scaffold to be “off-hired”.
8. INSURANCE
Public Liability Insurance, A$20 million cover limit and Workers Compensation under WorkCover (Qld) , unlimited cover, all in terms and conditions stated in our policy documents as provided. You are to arrange execution and extension of a (Composite) Contractors Works Insurance Policy and other insurance policies to cover all works, obligations and liabilities until completion of the maintenance period with a cross liability, non- imputation and waiver of subrogation clause to ensure we are fully protected against all loss for our (and your) respective rights and interests as a named insured.
Professional Indemnity Insurance is not applicable.
Additional insurance, if required, will be charged extra to the quoted price.
9. QUALITY ASSURANCE
We have an accredited Quality System.
We will supply the following documentation for implementing our QA system: Project Management Plan, which incorporates Quality, Safety and Environmental aspects. The provision of Quality, Safety or Environmental documentation is, however in no way to be taken to be a requirement to be met by us as a precondition to the acceptance or payment of progress claims or acceptance that practical completion has been achieved.
10. LABOUR
We have allowed for working site hours Monday to Saturday, but excluding RDO’s, Public holidays, Standard Industry Holidays and non-workdays. The terms and conditions of our Industrial Agreement (IA) will override any site-specific conditions. A copy of our IA is available upon request. Unless specifically stated otherwise, all the rates quoted are exclusive of Living Away from Home Allowance and travel outside the applicable Metropolitan area.
11. DELAYS
In addition to the qualifying cause of delay for AS 4910, a qualifying cause of delay shall include any cause of delay that is beyond our reasonable control and shall not be limited to the following: –
Inclement weather, your breach of contract, any delays caused by a failure of you to comply with your obligations pursuant to AS4910, changes in program, out-of-sequence Works, variation to the Contract, Latent Conditions, any direction from public or statutory authority, any change in legislative requirements or scope changes or industrial conditions generally occurring in the industry not limited to us.
We are entitled to an adjustment to the contract sum and an extension of time in respect of any costs incurred due to a qualifying cause of delay (listed above or otherwise listed in AS4910).
12. LATENT CONDITIONS
We do not accept any risk pertaining to Latent conditions or any above surface or below surface physical conditions.
13. CLAIMS
You will have 10 business/working days to assess any written claim or variation provided by us under the Contract. Otherwise, you will be deemed to have accepted the entire written claim or variation.
We will be entitled to claim 15% for preliminaries and margin with each variation claim. Any alleged setoff claimed under this Contract shall be restricted solely to the Works under this Contract and not any other agreement between the parties.
14. OCCUPATIONAL HEALTH AND SAFETY
We will maintain adequate systems to control and manage occupational health, safety, and rehabilitation management (OHS) and environmental risks arising from the work in compliance with statutory requirements. We also note that you are the principal contractor for all OHS Statutory Requirements for the site.
15. SCHEDULE OF RATES
Where a Bill of Quantities forms part of this Contract, with quantities provided by you or on your behalf, we have not verified the accuracy of the quantities provided unless otherwise stated in our offer in writing. Where actual quantities of an item is greater or less than expressed in the Bill of Quantities, the upper and lower quantities limits for AS4910 shall be + 0% of the quantities expressed such that any adjustment by comparison of the actual quantities to the Bill of Quantities shall constitute a Variation.
Where this lower limit is exceeded, we reserve the right to increase the values within the Bill of Quantities at this time.
16. VARIATIONS
Where additional works are required due to the discovery of hidden or unidentifiable difficulties such as any subsidence or unsuitable or undulating ground conditions, protruding or dismantled formwork, repositioning or adjusting the scaffolding due to adjustments made to it by others, tie or hop-up adjustments, etc, these shall be deemed to be a Variation of this Contract under this clause 16.
If the Scope of Works is decreased during the tender process or during the Contract period, we reserve the right to our entire profit margin on the original Scope of Works. With every variation you request, we shall submit a costing/timing proposal, which if the subject variation is proceeded with, will be deemed accepted (on an accounts payable basis and for progress claim purposes) at the later of either:
- initial proceeding with the subject variation; or
- submission of costing/timing
Such acceptance will not be evidence that the subject variation has been carried out satisfactorily and/or will it preclude the costing/timing proposal being subject to further negotiations before Practical Completion.
17. DISCREPANCIES AND ERRORS IN DOCUMENTS
The accuracy and adequacy of any and all documents provided for the execution of this Contract, shall be the sole and exclusive responsibility of the provider of these documents regardless of the vetting or approval by any other party.
Where a discrepancy in the drawings or documents exists, the structural/or “for construction drawings” shall take precedence over all others unless otherwise agreed.
18. TERMINATION
We have the right to terminate the Contract (and/or any other contract) with you upon 7 days’ notice to you of any breach of the Contract (and/or any other contract) asking for that breach to be remedied by you and you do not remedy the breach within this timeframe.
19. CONTRACTORS RESPONSIBILITIES
Unless otherwise stated in our offer, you will provide a safe working site that meets statutory requirements and the following services and facilities free of charge as and when required:
- Access & scaffold in compliance with relevant site safety
- Fully maintained site sanitary & ablution facilities including messing & change sheds to statutory standards to accommodate our site personnel. Adequate site security is to be
- Provision for the removal of rubbish at locations and times adequate for the execution of the
- Provision and payment of all permits, approvals, taxes, duties or the like unless specifically included in this tender.
- Contractors All Risk Insurance nominating us as an insured
- Traffic
20. DEFECT LIABILITY PERIOD
No defect liability is provided for scaffolding services.
21. LIMITS OF LIABILITY
Consequential Loss
Without exception, we shall not be liable for any indirect, consequential, special or penal damages whatsoever caused or any loss of production, loss of profits, loss of use, loss of revenue, loss of reputation, loss of opportunities or loss of anticipated savings or for any financial or economic loss either under this Contract or at law, including but not limited to breach of duty and/or tort, or in any other way connected with the performance of our works.
Without exception, our liability for the performance of our works, howsoever arising, either under this Contract or at law, including but not limited to breach of duty and/or tort, or in any other way connected with the performance of our works, will be capped at amounts recovered under insurance provided by us as contemplated in this Contract.
The limitation shall not apply with respect to our liability in connection with any of the following events for which we are held to be liable:
- any infringement of confidentiality or intellectual property;
- death or personal injury;
- fraud or fraudulent misrepresentation; or
- any wilful misconduct.
22. NOVATION
Neither party is entitled to novate this agreement unless all works subject to a Progress Claim has been paid in full and all appropriate insurances are in place prior to novation.
23. JURISDICTION
These terms and conditions and any Contract to which they apply shall be governed by the laws of the State or Territory where the Contract is formed, and the parties submit to the jurisdiction of the courts of that State or Territory.
24. DISPUTE RESOLUTION
All disputes related to or arising out of these terms and conditions, the AS4910 or in relation to the works must proceed to mediation (with a mediator agreed by the parties) and not to arbitration before litigation is commenced.
25. PERSONAL PROPERTY SECURITY ACT
You consent for us to register any one or more security interest (as that term is defined in the Personal Property Securities Act 2009 (Cth) (‘PPSA’)) (‘Security Interest’) under the PPSA and you undertake to promptly do all things reasonably required by us to enable us to do so. You must promptly do anything required by us to ensure that any Security Interest granted to us is a perfected Security Interest and has priority over all other Security Interests in any item of plant and equipment (whether fixed or unfixed) and/or any works.
You agree not to cause (directly or indirectly) the registration of a Security Interest, or the discharge of any registration, in respect of any item of plant or equipment of (whether fixed or unfixed)or any work the subject of the Agreement or to make any Amendment Demand (as that term is defined in the PPSA) without our prior written consent and payment by you to us in respect of that plant, equipment or work.
26. OUR EQUIPMENT & CONSTRUCTION PLANT
You cannot under any circumstances use or hold a lien over any of our materials, equipment and construction plant without our prior expressed written consent for each piece of equipment, construction plant or material.