Quotes & Invoices $3301 and over
The following Terms of Trade (General Conditions) for Quoted and Invoiced Scope of works $3,301 and above.
General Conditions
1. DEFINITIONS
NOTE - In this Contract, certain words and phrases used throughout are defined, and are shown in bold when used (e.g.Owner)
In this Contract, except where the context otherwise requires:
Act - means the Queensland Building and Construction Commission Act 1991;
Appendix - means the Appendix to the Schedule of this Contract;
Business Day - means a Day that is not:
• a Saturday or Sunday; or
• a public holiday in the place in which any relevant act is to be or may be done;
Christmas Shutdown - means the general shutdown of activities within the building and construction industry throughout the following periods:
• 22 December to 31 December; and
• 1 January to 10 January;
Commission - means the Queensland Building and Construction Commission;
Contract - means these general conditions, any special conditions set out in Part J of the Appendix, the Schedule, the Plans, the Specifications, and anything else annexed to, or incorporated by reference into, this Contract;
Contract Works Policy -means a policy of insurance providing indemnity to the Contractor, the Owner and any lender (if so required by the Owner) against liability for physical loss, destruction or damage to the Works, or to materials and goods on or adjacent to the Land;
Contract Price - means the amount stated in Item 1 of the Schedule, as adjusted under this Contract;
Contractor -means the person stated in Item 3 of the Schedule and includes the Contractor's permitted assignees and transferees;
Contractor's Margin - means the margins stated in Part A and Part B of the Appendix to be applied in accordance with Clause 9.5;
Contractor's Representative -means the person stated in Item 16 of the Schedule;
Date for Commencement -means the date by which the Contractor must commence the Works on the Site as determined in accordance with Clause 8.1 of this Contract;
Date for Practical Completion - means the date stated in, or otherwise determined in accordance with, Item 10 of the Schedule by which the Works are to be brought to Practical Completion, as adjusted under this Contract;
Date of Practical Completion - means the date on which the Works reach Practical Completion;
Days - means calendar days;
Defects Liability Period - means the period commencing on the Day following the Date of Practical Completion, and ending twelve (12) months after the Date of Practical Completion;
Deposit - means the amount stated in Item 4 of the Schedule to be paid by the Owner to the Contractor under Clause 11.5 of this Contract;
Engineer Specification and Confirmation - is a document required under this Contract to be signed by an engineer (RPEQ), providing the design of any footings or slabs for the Works under this Contract;
Foundations Data - means the information about the Land needed for the preparation of an appropriate footings design for the Land and, if appropriate, a slab design for the Land, and an adequate estimate of the cost of constructing
Holding Account - means any account maintained by Master Builders Queensland with a financial institution from time to time for the purpose of holding amounts in accordance with the provisions of contracts used by its members, and amounts in dispute pending resolution of such disputes;
Information System - means a system for generating, sending, receiving, storing or otherwise processing electronic communications;
Land - means the Land described in Item 6 of the Schedule on which the Works are to be carried out;
Land Owner - means a registered owner of the Land as stated on the relevant certificate of title;
Land Owner's Consent - means the written consent obtained by the Owner (if required) under Clause 7.1(b) from all Land Owner's - consenting to the carrying out of the Works by the Contractor on the Land;
Latent Condition - means any physical condition, including artificial things, on or around the Land or the existing dwelling or other building, including surface and subsurface conditions or any matter or condition relating to the structure of the dwelling or other building, which may not be readily visible, or hidden or unable to be readily seen during a physical inspection, and which may differ materially from the physical conditions reasonably expected by the Contractor at the date of the formation of the Contract;
Method - means the method for claiming progress payments which is stated in Item 21 of the Schedule, being Method A, Method B or Method C in Part D of the Appendix;
Owner - means the person stated in Item 2 of the Schedule and includes the Owner's heirs, executors, administrators, permitted assignees and transferees;
Owner's Agent - means the person stated in Item 16 of the Schedule;
Plans - means the plans, drawings and designs relating to the Works described in Part C of the Appendix;
Possession - means when the Works, or any part of the Works, are taken over, occupied or used by the Owner or the Owner's employees, other contractors or agents;
Practical Completion - means that stage of the Works when:
• the Works are completed in compliance with this Contract, including all Plans and Specifications, and all statutory requirements applying to the Works, without any defects or omissions other than minor defects or minor omissions that will not unreasonably affect occupation; and
• if the Owner claims there are minor defects or minor omissions, the Contractor gives the Owner a defects document for the minor defects or minor omissions;
Prime Cost Item - means an item (for example, a fixture or fitting) that either has not been selected, or the price of which is not known, at the time of the formation of this Contract, and the cost for the supply and delivery of which the Contractor has made a reasonable allowance in this Contract;
Provisional Sum - means an estimate of the cost of carrying out particular work (including the cost of supplying any materials needed for the work) under this Contract for which the Contractor, after having made all reasonable enquiries, could not state a definite amount at the time of the formation of this Contract;
Resident Owner - means an Owner who is an individual and resides on the Land, or intends to reside in the building on completion of the Works or within six (6) months after the completion of the Works;
Schedule - means the Schedule contained in this Contract;
Security Account Money - means that part of the Contract Price which is to be funded by the Owner personally, and which is not to be provided by a financial institution by way of a loan to the Owner;
Site - means that part of the Land necessary to be occupied and used by the Contractor for the construction of the Works;
Specifications - means the specifications relating to the Works described in Part C of the Appendix;
Stage - means, if the Method stated in Item 21 of the Schedule is either Method A or Method B, the stages stated in the applicable Method in Part D of the Appendix;
Substantial Breach - means a party's failure or refusal to perform a substantial obligation under this Contract (such as, for example, the Owner's failure to make payment on time);
Tribunal - means the Queensland Civil and Administrative Tribunal established under the Queensland Civil and Administrative Tribunal Act 2009; and
Works - means the whole of the work to be carried out by the Contractor under this Contract, a description of which is contained in Item 5 of the Schedule, and includes variations to the Works.
2 INTERPRETATION
In this Contract;
a) headings and explanatory notes do not form part of this Contract, and cannot be used in its interpretation;
b) words in the singular include the plural and vice versa, according to the requirements of the context;
c) words importing a gender include every gender;
d) references to a person include an individual, firm or body corporated or unincorporated;
e) if the time for making any payment or doing any other act required or permitted by this Contract falls on a Day which is not a Business Day, then the time for making the payment or doing the act is deemed to be the next Business Day; and
f) no provision of this Contract is to be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Contract or the inclusion of the provision in this Contract.
3 DISCREPANCIES AND AMBIGUITIES
3.1 Parties to consult if discrepancy or ambiguity found
If either party finds any discrepancy or ambiguity in this Contract that party must notify the other party in writing. The parties agree to consult with each other in an attempt to resolve the discrepancy or ambiguity. Failing resolution, the discrepancy or ambiguity is to be resolved in accordance with Clause 3.3, or if that Clause should not resolve the discrepancy or ambiguity, then in accordance with Clause 27.
3.2 Entire agreement
The parties acknowledge that the terms of their contract are fully set out in this Contract, and may not be altered, varied, deleted or otherwise affected by reference to any prior representations, conditions or agreements, whether written or verbal.
3.3 Order of precedence of documents
Subject to Clause 3.1, any discrepancy or ambiguity in or between any documents comprising this Contract is to be resolved by adopting the following order of precedence:
a) any special conditions set out in Part J of the Appendix;
b) these general conditions;
c) the Specifications;
d) the Plans; and
e) any other contract documents.
3.4 Figured dimensions prevail over scaled dimensions
Where any discrepancy exists between figured and scaled dimensions, the figured dimensions shall prevail.
4 COOLING-OFF PERIOD
4.1 Owner may withdraw from this Contract during cooling-off period
Subject to Clauses 4.2 and 4.3, the Owner may withdraw from this Contract:
a) within five (5) Business Days after receiving a signed copy of this Contract; or
b) if five (5) Business Days have elapsed from the date of the formation of this Contract and the Owner has not received from the Contractor a signed copy of this Contract.
4.2 Requirements for Owner to withdraw
In order to withdraw from this Contract, the Owner must give a signed written notice to the Contractor stating
that the Owner withdraws from this Contract, and the section of Schedule 1B of the Act under which the
withdrawal is made, within the time allowed under that section for the withdrawal.
4.3 Limitations on right to withdraw
The Owner may not withdraw from this Contract if:
a) the Owner and the Contractor have previously entered into a contract relating to the same detached dwelling, home or Land in substantially the same terms as this Contract;
b) the Owner has received formal legal advice about this Contract before entering into this Contract; or
c) at, or after, the time of the formation of this Contract, the Owner tells the Contractor that the Owner received formal legal advice about this Contract before entering into this Contract.
4.4 Consequences of withdrawal
If the Owner withdraws from this Contract in accordance with this Clause 4, the Contractor must refund the
Deposit to the Owner less $100 and any out-of-pocket expenses reasonably incurred by the Contractor under this
Contract to the date the Contractor received the Owner's notice. If the Owner has not paid the Deposit, the
amount of $100 plus the Contractor's out-of-pocket expenses will, on written demand by the Contractor for such
amounts, be deemed to be a debt due and payable by the Owner to the Contractor.
5 APPROVAL TO COMMENCE BUILDING WORK
5.1 Reasonable steps to be taken to obtain building approval
The party stated in Item 14 of the Schedule must promptly take all reasonable steps, and pay any relevant fee, to obtain the necessary building approval to commence the Works on the Land.
5.2 A party may terminate this Contract if necessary approvals not obtained within 30 Business Days
If any necessary building and/or development approval is not obtained within thirty (30) Business Days after the date of the formation of this Contract, either party may give written notice to the other party terminating this Contract without liability to that other party, except only that the Contractor is entitled to be paid a reasonable remuneration, including a reasonable allowance for supervision, overheads and profit, for work carried out under this Contract to the date this Contract was terminated. On written demand by the Contractor for such remuneration, the amount demanded is deemed to be a debt due and payable by the Owner to the Contractor.
5.3 Consequences of terminating this Contract under Clause 5.2
If the Contractor has received the Deposit from the Owner and that amount is in excess of the amount payable to the Contractor under Clause 5.2, the Contractor must refund the excess to the Owner within five (5) Business Days of the termination.
6 INSURANCE
6.1 Statutory insurance obligations
The Contractor must effect and maintain all policies of insurance, including, for example, WorkCover in respect of its workers, required to be effected by the Contractor under any statute or other law or legal requirement.
6.3 Public liability insurance to be provided by Contractor
The Contractor must effect and maintain from the Date for Commencement until the expiry of the Defects Liability Period, a public liability insurance policy covering liabilities to third parties in respect of personal injury, death, and loss or damage to property, except the Works, arising out of, or in connection with, the Works.
6.4 Requirements for public liability insurance policy
The policy referred to in Clause 6.3 must:
a) Indemnify the Owner as principal in respect of any occurrence insured by the policy and arising out of the negligence of the Contractor in the performance of the Works; and
b) provide cover for an amount which is not less than $5 million for any one occurrence.
6.5 Responsibility if loss caused by Owner
To the maximum extent permitted by law, the Contractor is not liable, and does not provide any indemnity, to the Owner, the Owner's employees or agents, or any other person for whom the Owner is responsible for any injury or death to any person, or loss or damage to any property, which arises as a result of any act or omission by the Owner, or any person for whom the Owner is responsible, and in respect of such claims the Owner must indemnify the Contractor.
6.6 Evidence of policies to be provided on written request
The Contractor must, on written request from the Owner, provide evidence of any insurance policies required to be effected by the Contractor under this Contract within five (5) Business Days.
6.7 Owner's responsibility for insurance
a) The Owner must insure the Works from the date which is two business days after the date of formation of the Contract, until the Date of Practical Completion or the date the Owner takes Possession of the Works, whichever is earlier;
b) If the Works involve the alteration, addition to, or repair of an existing building, then the Owner must effect and maintain an insurance policy for the duration of this Contract which provides cover for the full replacement value of any existing building affected by the Works, and any contents thereof, against any loss or damage, and must provide a copy of the policy to the Contractor if the Contractor makes a request in writing.
7 THE LAND
7.1 Evidence of title or Land Owner's consent to carry out the Works
The Owner must provide to the Contractor within five (5) Business Days after the date of the formation of this Contract either:
a) satisfactory written evidence of the Owner's title to the Land, together with full details of any easements, restrictions or covenants which may affect the performance of the Works; or
b) if the Owner is not the Land Owner, written consent from all Land Owner's consenting to the carrying out of the Works by the Contractor on the Site, together with satisfactory written evidence of their title to the Land and full details of any easements, restrictions or covenants which may affect the performance of the Works.
7.2 Contractor to have free and uninterrupted access to Site and existing buildings
As soon as practicable after the date of the formation of this Contract, and by the time stated in Item 13 of the Schedule, the Owner must provide to the Contractor free and uninterrupted occupation of the Site, and all reasonably required access to any existing buildings on the Land necessary to carry out the Works.
7.3 Access to the Site
a) The party nominated in Item 13 of the Schedule is responsible for providing and maintaining access to the Site for any persons, vehicles or machinery reasonably necessary for the carrying out of the Works.
b) If the Owner is responsible for providing access and the Site becomes inaccessible due to any reason beyond the control of the Contractor, any costs incurred by the Contractor in obtaining sufficient access to the Site is to be added to the Contract Price and included in the next progress claim.
7.4 Owner's right to inspect Works
a) On written request by the Owner, the Contractor must give to the Owner, or a person authorised by the Owner:
i) reasonable supervised access to designated construction areas at the Site; and
ii) a reasonable opportunity to view any part of the Works provided that the Contractor's performance is not obstructed and the Owner or authorised person complies with any reasonable direction by the Contractor in respect of workplace health and safety.
b) Access by the Owner, or a person authorised by the Owner, under this Clause is to be by prior arrangement with the Contractor and must be during usual business hours or other times as agreed.
7.5 Identification of the Land to be provided by Owner
The Owner must clearly and accurately identify the Land to the satisfaction of the Contractor.
7.6 Evidence of boundaries or position of the Land to be provided by Owner
The Owner must, within five (5) Business Days after the formation of this Contract, give to the Contractor satisfactory written evidence of the boundaries or position of the Land, and the Owner warrants that such evidence will be accurate.
7.7 Owner's failure to provide evidence of boundaries or position of the Land
If the Owner fails to comply with Clause 7.5 or 7.6, the Contractor may, in writing, request the Owner to obtain a survey of the Land. If the Owner fails to obtain a survey within five (5) Business Days after the date of the Contractor's request, the Contractor may arrange for a survey of the Land and the cost of the survey, plus 15% of that cost for overhead and profit, is to be added to the Contract Price and included in the next progress claim.
8 COMMENCEMENT AND COMPLETION
8.1 Date for Commencement
The Contractor must commence the Works on the Site:
a) if a date is stated in Item 9 of the Schedule as the Date for Commencement, on or before that date; or
b) if the Date of Commencement is stated in Item 9 of the schedule to be determined under this clause 8.1 b), then the Contractor will advise of the commencement date subject to the known forecasted weather conditions to work safely at heights and plant and material supplier availability, and the Contractor receiving all of the following as stated in 8.1 b) i), ii), iii), iv)
i) all information, evidence and consents required to be given by the Owner under Clause 7;
ii) satisfactory evidence of the Owner capacity to pay the Contract Price pursuant to Clause 11.1;
iii) the building approval required pursuant to Clause 5.1;
iv) if a financial institution is providing loan money to the Owner, a notice from the lender to the Contractor that the Works may commence; and
v) a signed copy of the Engineer Specification and Confirmation if required under Clause 11.11(d).
8.2 Time for Practical Completion
The Contractor must bring the Works to Practical Completion by the Date for Practical Completion.
8.3 Parties to provide reasonable assistance
Each party must take all reasonable steps and provide all reasonable assistance to the other to ensure the matters stated in Clause 8.1(b) are satisfied as soon as reasonably practicable.
9 PRIME COST ITEMS AND PROVISIONAL SUMS
9.1 Owner to provide directions relating to Prime Cost Items or Provisional Sums
If this Contract includes any Prime Cost Items or Provisional Sums in Part A or Part B of the Appendix, the Owner must give to the Contractor all necessary written and signed directions requested by the Contractor regarding the selection or supply of the item or work represented by a Prime Cost Item or Provisional Sum within five (5) Business Days.
9.2 Contractor to provide notice to Owner where a Prime Cost Item is unavailable
If any Prime Cost Item selected by the Owner is unavailable or will, in the opinion of the Contractor, unduly delay the progress of the Works, the Owner must specify in writing to the Contractor an alternative item within five (5) Business Days of the Contractor's request to do so.
9.3 If Owner fails to specify alternative Prime Cost Item
If the Owner fails to comply with Clause 9.2, the Contractor may select and supply an alternative Prime Cost Item as near as reasonably possible in quality to the originally selected Prime Cost Item.
9.4 Contract Price adjustment where cost is less than allowance
If the actual cost of a Prime Cost Item, or the actual cost of the work in respect of a Provisional Sum, is less than the total amount allowed for that item or work in Part A or Part B of the Appendix, the difference is to be deducted from the Contract Price.
9.5 Contract Price adjustment where cost exceeds allowance
If the actual cost of a Prime Cost Item, or the actual cost of the work in respect of a Provisional Sum, exceeds the total amount allowed for that item or work in Part A or Part B of the Appendix, the excess amount plus the applicable Contractor's Margin stated in Part A or Part B of the Appendix is to be added to the Contract Price.
10 CONTRACTOR'S WARRANTIES
10.1 Warranties relating to the carrying out of the Works
The Contractor warrants that the Contractor will carry out the Works:
a) in an appropriate and skilful way;
b) with reasonable care and skill;
c) in accordance with the Plans and Specifications;
d) with reasonable diligence; and
e) in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975;
10.2 Warranty relating to suitability of premises for occupation
If the Works are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, the Contractor warrants that the home will be suitable for occupation when the Works are finished.
10.3 Warranty relating to prime cost items and provisional sums
The Contractor warrants that any Prime Cost Item or Provisional Sum provided for in this Contract has been calculated with reasonable care and skill (having regard to all the information, including information about the nature and location of the Land, reasonably available at the date of the formation of this Contract).
10.4 Warranties relating to suitability of materials
Subject to Clause 10.5, the Contractor warrants that all materials to be supplied by the Contractor for use in the Works:
a) will be good and, having regard to generally accepted practices or standards applied in the building and construction industry for the materials, or the specifications, instructions or recommendations of manufacturers or suppliers of the materials, suitable for the purpose for which they are to be used; and
b) unless expressly stated otherwise elsewhere in this Contract, will be new.
10.5 Applicability of Clause 10.4
Clause 10.4 does not apply if:
a) an architect is the Owner's Agent, or this Contract is to be administered by an architect engaged by the Owner, and the Contractor is subject to the direction of the architect for the materials that are to be s supplied by the Contractor; or
b) the Owner is responsible for specifically nominating the materials to be supplied by the Contractor for use in the Works without any recommendation, representation, suggestion or other approach having been made to the Owner by the Contractor:
i) supporting, or approving, the use of the materials; or
ii) criticising, or disapproving the use of, other materials that could be considered to be appropriate for use for the purpose for which the materials nominated by the Owner are to be used, and there are no reasonable grounds for not using the materials or, if there are reasonable grounds for not using the materials, the Owner insists on the materials being used despite written advice to the contrary given to the Owner by the Contractor.
11 OWNER'S OBLIGATIONS
11.1 Evidence of capacity to pay the Contract Price
The Owner must, within five (5) Business Days of the Owner signing the Contract, provide evidence satisfactory
to the Contractor that the Owner has the financial capacity to pay the Contract Price.
11.2 Contractor may request evidence of capacity to pay
The Contractor may, at any time prior to the Works reaching Practical Completion, request that the Owner
provide satisfactory evidence of its capacity to pay the unpaid balance of the Contract Price, or the price of any
variation, and the Owner must, within five (5) Business Days of the request, provide such evidence to the
Contractor.
11.3 Owner's obligation if capacity to pay is reduced or ceases
The Owner must immediately notify the Contractor if at any time during this Contract, the Owner's capacity to
pay the unpaid balance of the Contract Price is in any way reduced or ceases.
11.4 Owner's obligation to pay the Contract Price
The Owner must pay the Contractor the Contract Price in accordance with this Contract.
11.5 Owner's obligation to pay Deposit
The Owner must pay the Deposit to the Contractor on signing this Contract.
11.6 Contractor to make progress claims
The Contractor is entitled to claim payment of the Contract Price progressively, at the following times:
a) if Method A is stated in Item 21 of the Schedule, on completion of the Stages set out in Method A in Part D of the Appendix, and for the following amounts:
i) the amount stated for the relevant Stage in Part D of the Appendix;
ii) any unpaid adjustment to the Contract Price under this Contract; and
iii) any other amount due and payable by the Owner to the Contractor under this Contract or otherwise; or
b) if Method B is stated in Item 21 of the Schedule, on or after:
i) the Day in each period stated in Method B in Part D of the Appendix; and
ii) the Date of Practical Completion,
and for the unpaid value of that part of the Works carried out up to, and including, that Day, any unpaid adjustment
to the Contract Price under this Contract, and any other amount due and payable by the Owner to the
Contractor under this Contract or otherwise.
11.7 Owner to make progress payments
If the Contractor gives to the Owner a progress claim for a progress payment under Clause 11.6, the Owner must
pay the Contractor the claimed progress payment within the period stated in Item 20 of the Schedule.
11.8 No set-off
The Owner acknowledges that, subject to Clause 18, the Owner has no right of set-off under this Contract or
otherwise; that is, to deduct any amount from a progress payment due to the Contractor under Clause 11.7.
11.9 Outstanding payments
If the Owner fails to make any payment to the Contractor within the times for payment under this Contract:
a) the Contractor is entitled to interest on the outstanding amount at the rate stated in Item 19 of the Schedule, payable from the Day after the date that payment was due until the date of payment; and
b) the Owner must pay to the Contractor any debt collection costs, including any legal costs on a full indemnity
basis, associated with recovering, or the attempted recovery of, the outstanding amount.
11.10 Materials supplied by Owner to be new, good and suitable for their purposes
Unless expressly stated otherwise elsewhere in this Contract, if the Owner is to supply materials for use in the
Works, the Owner must supply materials which are new, good and suitable for the purposes for which they are to
be used and comply with any relevant Australian Standards or Codes, and where requested by the Contractor,
provide written evidence of the materials' compliance.
11.11 Documents supplied by Owner
If the Owner supplies any documents or Foundations Data to the Contractor, the Owner:
a) warrants that the documents or data are, or will be, accurate, suitable for the purposes for which they will be used, appropriate in all respects for the Land (including the Site), and that it is, or will be, reasonable for the
Contractor to rely on the documents or data;
b) acknowledges that it is, or will be, reasonable for the Contractor to rely on the documents or data;
c) must supply a sufficient number of copies to enable the Contractor to perform the Works, and to obtain necessary approvals if the Contractor is required to do so under this Contract; and
d) must have the Owner's engineer (RPEQ) sign the Engineer Specification and Confirmation on entering into this Contract, if applicable.
11.12 Owner not to interfere with the carrying out of the Works
a) The Owner must not obstruct, interfere with or hinder the carrying out of the Works. The Owner must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of the
Works.
b) If the Owner or any person authorised by the Owner obstructs, interferes with, or hinders the carrying out of the Works, the Owner must indemnify the Contractor against the consequences of any delay, and any additional costs incurred by the Contractor, as a result if the Contractor gives to the Owner a written notice advising of the delay or the additional costs within ten (10) Business Days of the Contractor becoming aware of the obstruction, interference or hindrance.
c) The Owner must:
i) comply with the directions of the Contractor given for workplace health and safety at the Site;
ii) not wilfully or recklessly interfere with or misuse anything provided for workplace health and safety at the
workplace;
iii) not wilfully place at risk the health and safety of any person at the workplace;
iv) not wilfully injure oneself; and
v) only attend the designated construction areas at the Site whilst supervised by the Contractor or the Contractor's Representative.
11.13 Communications between Owner and Contractor
The Owner must not give directions to the Contractor's employees or subcontractors. The Owner is not entitled to rely on any statements made or representations given by the Contractor's employees or subcontractors other than those personally made or given by the Contractor or the Contractor's Representative and later confirmed in writing.
11.14 Contract subject to loan approval
If stated in Item 11 of the Schedule that this Contract is conditional on the Owner obtaining from the lender stated in that Item, on or before the loan approval date stated in that Item, approval for a loan not less than the loan amount stated in that Item, the Owner must:
a) apply to the lender for the loan approval within five (5) Business Days after the date of the formation of this
Contract; and
b) give the Contractor a written notice within three (3) Business Days after the loan approval date stating
whether the Owner has obtained the loan approval.
11.15 Right to terminate Contract if loan approval rejected
If the Owner has not obtained the loan approval by the loan approval date stated in Item 11 of the Schedule, then, within five (5) Business Days after the loan approval date, the Owner may notify the Contractor in writing that this Contract is terminated for failure to obtain loan approval, and provide evidence satisfactory to the Contractor that the lender has assessed and rejected the Owner's loan application. If this Contract is terminated under this Clause, the Contractor must refund to the Owner the Deposit less any costs incurred by the Contractor in performing the Works.
11.16 Consequence of failure to notify under Clause 11.15
If no notice under Clause 11.15 is given by the Owner to the Contractor within five (5) Business Days after the loan approval date stated in Item 11 of the Schedule, then this Contract will no longer be conditional on the Owner obtaining approval for a loan from the lender stated in that Item.
11.17 Owner to deposit money into security account
Unless the parties otherwise agree:
a) the Owner is to deposit the Security Account Money into the Holding Account or an account, in the joint
names of the Contractor and the Owner, with a financial institution selected by the Owner and approved by
the Contractor;
b) withdrawals from the account are to be made by the parties to pay progress payments to the Contractor in
accordance with this Contract before loan monies (if any) are used to pay the balance of the Contract Price;
c) the Owner must deposit the Security Account Money before the Works are started at the Site; and
d) withdrawals from the account must require the signatures of both the Contractor and the Owner.
11.18 Contractor's entitlement to Security Account Money
If the Owner fails to pay any amount due to the Contractor, or if the Contractor terminates this Contract, the
Contractor is entitled to the Security Account Money to the extent of any amount due and payable to the Contractor under this Contract.
11.19 Owner's entitlement to Security Account Money
The Owner is entitled to the balance of the Security Account Money, and any interest earned on the account, after the Contractor has received from the Owner full payment of the Contract Price.
11.20 Disputes relating to Security Account Money
Should there be any dispute between the parties as to their entitlement to the Security Account Money, it must be dealt with in accordance with any order or direction of the Tribunal. The parties must authorise the relevant financial institution to pay any Security Account Money in accordance with any such order or direction, and acknowledge that the relevant financial institution is under no liability to either party on account of any such payment.
12 VARIATIONS BY AGREEMENT
12.1 Request for a variation
Either party may request a variation of the Works.
12.2 Contractor not obliged to perform variation
The Contractor may, at its discretion, agree to any variation requested by the Owner.
12.3 Agreement to vary Works
The parties may agree to vary the Works by adding work to, or omitting work from, the Works. The Contractor must ensure that any agreement to vary the Works is put in writing in a variation document, and a copy given to the Owner, within five (5) Business Days from the date of agreement, and before any work the subject of the variation is started.
12.4 Variation document
Any variation document to be provided by the Contractor under this Contract must:
a) be readily legible;
b) describe the variation;
c) state the date of the request for the variation; state the Contractor's estimate of any period of delay to the
progress of the Works as a result of the variation;
d) state any adjustment to the Contract Price because of the variation, or the method for calculating the
adjustment; and
e) state when any adjustment to the Contract Price because of the variation is to be:
i) if the variation results in a decrease in the Contract Price, accounted for; or
ii) if the variation results in an increase in the Contract Price, paid (which must not be before any work the
subject of the variation is started).
12.5 Owner's written notice agreeing to variation
The Owner must give to the Contractor a written notice agreeing to the variation within five (5) Business Days after receiving the variation document provided by the Contractor under Clause 12.3.
12.6 No work before receipt of Owner's notice
The Contractor must not start to carry out any Work the subject of a variation until the Contractor receives the written notice from the Owner under Clause 12.5 agreeing to the variation.
12.7 Paying for variations
Where a variation results in an increase to the Contract Price, the Owner must pay the Contractor the amount of the increase in accordance with the time stated in the variation document.
12.8 Contractor under no obligation to commence any variation until Owner provides evidence of capacity to pay
The Contractor is under no obligation to start to carry out any variation until such time as the Owner produces satisfactory evidence to the Contractor that the Owner has the financial capacity to pay for the variation.
13 STATUTORY REQUIREMENTS
13.1 Compliance with statutory requirements
The Contractor must:
a) comply with all statutory requirements relating to the Works; and
b) give any notice or report, and pay any fee, in order to comply with Clause 13.1(a).
13.2 Increased cost of compliance If the cost to the Contractor:
a) in complying with any statute, other law or any requirement of a local government, private certifier or other body having jurisdiction over the Works, increases after the date of the formation of this Contract; or
b) in carrying out the Works, increases after the date of the formation of this Contract as a result of the introduction or increase of any fee, tax, duty, charge, levy or regulation, the amount of the increase is to be added to the Contract Price.
13.3 Variation due to compliance with statutory requirements
If the Contractor's compliance with a statutory requirement requires a variation of the Works, the Owner must, within five (5) Business Days after receiving a variation document provided by the Contractor that complies with the requirements set out in Clause 12.4, give to the Contractor a written notice agreeing to the variation unless the stated adjustment to the Contract Price, or method for calculating the adjustment to the Contract Price, because of the variation is unreasonable having regard to the extent of the work to be added to, or omitted from, the Works.
13.4 Owner's failure to agree to variation
If the Owner fails to agree to a variation required to comply with a statutory requirement in writing, then the dispute arising as a result is to be resolved in accordance with Clause 27.
14 LATENT CONDITIONS
14.1 Contractor to notify Owner of Latent Condition
The Contractor must, on becoming aware of a Latent Condition, promptly give to the Owner a written notice describing the Latent Condition, the Contractor's estimate of the work required to overcome the Latent Condition, and the Contractor's estimate of the time required to overcome the Latent Condition.
14.2 Variation due to Latent Condition
Subject to Clause 14.3, the Contractor must vary the Works to overcome any notified Latent Condition that affects the Contractor's performance of the Works in accordance with this Contract.
14.3 Owner's written notice agreeing to variation
Within five (5) Business Days after receiving a variation document provided by the Contractor that complies with the requirements set out in Clause 12.4, the Owner must give to the Contractor a written notice agreeing to the variation of the Works required to overcome the Latent Condition unless any stated adjustment to the Contract Price, or method for calculating the adjustment to the Contract Price, because of the Latent Condition is unreasonable having regard to Clause 14.5 or the extent of the work to be added to, or omitted from, the Works.
14.4 Owner's failure to agree to variation
If the Owner fails to agree to a variation required to overcome a Latent Condition in writing, then the dispute arising as a result is to be resolved in accordance with Clause 27.
14.5 Limitation on Contractor's right to recover for variation
Except where the Owner supplied the Foundations Data, the Contractor cannot seek from the Owner payment of an amount for a variation in respect of a Latent Condition if:
a) the Contractor failed to obtain the Foundations Data before entering into this Contract and, had the
Contractor obtained the Foundations Data, the need for that amount could reasonably have been established
and the amount calculated; or
b) the Contractor obtained the Foundations Data before entering into this Contract, and the need for that
amount could reasonably have been established, and the amount calculated from, the Foundations Data.
15 DELAYS AND EXTENSION OF TIME CLAIMS
15.1 Contractor's claim for an extension of time
If the progress of the Works is delayed as a result of any of the following causes:
a) a variation of the Works under this Contract;
b) a failure by the Owner, or the Owner's Agent, to give to the Contractor a written notice agreeing to a variation
in accordance with Clause 12.5, 13.3 or 14.3;
c) an act or omission of the Owner, the Owner's Agent, the Owner's consultants, other agents or other contractors, or authorised representatives of the lender stated in Item 11 of the Schedule;
d) a Latent Condition;
e) a breach of this Contract by the Owner;
f) a lawful suspension of the Works;
g) proceedings being taken, or threatened by, or disputes with, adjoining neighbouring owners or residents;
h) an act of prevention by the Owner not otherwise covered by this Clause;
i) inclement weather, or any conditions arising as a result of inclement weather;
j) a Christmas Shutdown;
k) industrial action or civil commotion affecting the Works, any persons employed in respect of the Works, or the
manufacture or supply of materials for the Works;
l) the unavailability of any labour (whether under a subcontract or a contract of employment) necessary for the
Contractor to carry out the Works with reasonable diligence;
m) the unavailability of any materials necessary to carry out the Works; or
n) any other cause not reasonably foreseeable at the date of the formation of this Contract, and beyond the
reasonable control of the Contractor,
o) Failure to, or delay by the Owner in providing evidence of insurance after receiving a notice from the
Contractor under sub-clause 6.7 b).
the Contractor must, within ten (10) Business Days of the Contractor becoming, or ought reasonably to have become, aware of the cause and extent of the delay, give to the Owner a written claim, signed by or on behalf of the Contractor, for a reasonable extension of the Date for Practical Completion that sets out the cause and consequences of the delay.
15.2 Extension for delays which have been allowed
Where a cause of delay (such as, for example, inclement weather) has been allowed for by the Contractor in Item 8 of the Schedule, the Contractor is not entitled to an extension of the Date for Practical Completion for any delays resulting from that cause until the allowance for that cause in the construction period has been fully exhausted.
15.3 Owner's assessment of claim
Within ten (10) Business Days after receiving the Contractor's written claim for an extension of the Date for Practical Completion, the Owner must assess the claim and give written notice to the Contractor:
a) accepting the claimed extension of the Date for Practical Completion; or
b) rejecting the whole or any part of the claimed extension of the Date for Practical Completion, and setting out the Owner's reasons for the rejection.
15.4 Copy of claim to be provided to the Owner where accepted
If the Owner accepts the Contractor's claim for an extension of the Date for Practical Completion, in whole or in part, in accordance with Clause 15.3, the Contractor must, within five (5) Business Days of the Owner's acceptance, give to the Owner a signed copy of the accepted claim for an extension of the Date for Practical Completion.
15.5 Consequence of Owner's rejection or failure to accept
If the Owner fails to give written notice in accordance with Clause 15.3, or gives notice rejecting the whole or any part of the Contractor's claim for an extension of the Date for Practical Completion, then the dispute arising as a result is to be resolved in accordance with Clause 27.
16 SUSPENSION OF THE WORKS
16.1 Contractor's entitlement to suspend the Works
The Contractor may, without prejudice to any of the Contractor's other rights or remedies under this Contract or at law, suspend performance of the Works where the Owner is in Substantial Breach of this Contract.
16.2 Written notice to suspend the Works
The Contractor must immediately notify the Owner in writing of the suspension and the grounds for the suspension (including the Substantial Breach or Breaches by the Owner).
16.3 Owner to remedy Substantial Breach within 10 Business Days
The Owner must remedy the Substantial Breach or Breaches set out in the suspension notice given to the Owner in accordance with Clause 16.2 within ten (10) Business Day after receiving the notice from the Contractor.
16.4 Contractor must recommence the Works within 10 Business Days of Owner remedying breach
The Contractor must recommence the carrying out of the Works within ten (10) Business Days of the Substantial Breach or Breaches set out in the suspension notice being remedied by the Owner.
17 PRACTICAL COMPLETION
17.1 Contractor's notice of anticipated Practical Completion
Not less than two (2) Business Days before the Day on which the Contractor anticipates bringing the Works to Practical Completion, the Contractor must give to the Owner written notice of:
a) the Day on which the Contractor anticipates bringing the Works to Practical Completion; and
b) a final inspection of the Works between the Owner, or the Owner's Agent, and the Contractor at a time on that Day set out in the notice.
17.2 Owner must notify Contractor if unable to attend final inspection
If the Owner, or the Owner's Agent, is unable to attend the final inspection of the Works at the time and Day set out in the Contractor's notice given in accordance with Clause 17.1, the Owner must:
a) immediately notify the Contractor in writing; and
b) arrange with the Contractor a final inspection of the Works at a mutually agreeable time, during usual business
hours, on a Day before, or on, the Day set out in the Contractor's notice given in accordance with Clause 17.1.
17.3 Parties to attend final inspection
The Owner, or the Owner's Agent, and the Contractor must attend the final inspection of the Works at the time and Day set out in the Contractor's notice given in accordance with Clause 17.1, or as otherwise arranged in accordance with Clause 17.2.
17.4 Owner's failure to attend the final inspection
If the Owner, or the Owner's Agent, does not attend the final inspection of the Works in accordance with Clause 17.3, the Owner is deemed to have accepted that:
a) there are no defects in the Works; and
b) the Works are complete.
17.5 Contractor to give signed defects document to Owner in certain circumstances
If, at the final inspection of the Works, the Owner claims that there are minor defects in, or minor omissions from, the Works, the Contractor must give to the Owner, at that inspection, a defects document that:
a) lists any minor defects and minor omissions that the Contractor and the Owner agree exist;
b) states when the Contractor is to remedy the listed agreed minor defects and minor omissions;
c) lists any minor defects or minor omissions that the Owner claims exist, but that the Contractor does not agree
exist; and
d) is signed by or on behalf of the Contractor.
17.6 Contractor must remedy agreed minor defects and minor omissions
The Contractor must remedy any agreed minor defects and minor omissions in any defects document within the times stated in the defects document or, if necessary materials or labour are unavailable, within a reasonable period.
17.7 No Possession of the Works before payment
Unless the Owner has obtained the Contractor's prior written consent, the Owner must not take Possession of the Works, nor is the Owner entitled to the keys to the Works, prior to making full payment to the Contractor of the Contract Price.
17.8 Contractor to hand over Works on payment
On full payment by the Owner of the Contract Price, the Contractor must hand over the Works, including the keys to the Works, to the Owner or the Owner's Agent.
17.9 Payment of disputed amount into Holding Account
a) If the Owner wishes to take Possession of the Works but disputes any part of the Contract Price claimed by
the Contractor, and the Contractor is a member of Master Builders Queensland, the Owner may pay the
disputed amount into Master Builders Queensland's Holding Account. The Owner is to then give the
Contractor a receipt showing the disputed amount has been deposited into the Holding Account, and pay any
undisputed amount to the Contractor. On receiving the receipt and payment (if any), the Contractor is to hand
over the Works, including the keys to the Works, to the Owner or the Owner's Agent.
b) Master Builders Queensland must ensure that any money received into the Holding Account under this Clause
is released in accordance with, or in satisfaction of:
written instructions signed by the Contractor and the Owner;
an order of the Tribunal;
an order of a Court; or
a written adjudication decision of an adjudicator.
17.10 Consequences of Owner taking Possession of the Works when not entitled to do so
If the Owner takes Possession of the Works when not entitled to do so under this Contract, the Works are deemed to have reached Practical Completion without any defects or omissions on the Day that the Owner takes Possession, and the Owner is liable to the Contractor for any loss or damage that the Contractor may incur or suffer as a result.
18 LIQUIDATED DAMAGES
18.1 Owner's entitlement to liquidated damages
If the Contractor fails to bring the Works to Practical Completion by the Date for Practical Completion, the Owner may, on Practical Completion, give to the Contractor a written claim for liquidated damages at the rate stated in Item 18 of the Schedule for each Day after the Date for Practical Completion until the Date of Practical Completion, or the Day on which this Contract is terminated, whichever is earlier.
18.2 Time for liquidated damages claim
The Owner will not be entitled to liquidated damages, or any other monetary consideration (including damages for breach of contract), for any failure by the Contractor to bring the Works to Practical Completion by the Date for Practical Completion unless the Owner gives to the Contractor a written claim for liquidated damages in accordance with Clause 18.1 within twenty-eight (28) Day after the Date of Practical Completion.
18.3 Contractor's obligations on receipt of claim for liquidated damages
Subject to Clauses 18.1 and 18.2, the Contractor must within ten (10) Business Days after receiving a written claim from the Owner for liquidated damages:
a) pay or allow to the Owner the liquidated damages claimed; or
b) give to the Owner a written notice of dispute in accordance with Clause 28.1, that sets out:
i) the amount of the liquidated damages claimed by the Owner that the Contractor disputes; and;
ii) the Contractor's reasons for disputing that amount of the liquidated damages claimed, and pay or allow to
the Owner any undisputed amount of the liquidated damages claimed.
19 DEFECTS LIABILITY PERIOD
19.1 Defects Liability Period
The Contractor must rectify defects in, and omissions from, the Works which become apparent and are notified in writing to the Contractor during the Defects Liability Period.
19.2 No retention money
To avoid doubt, no part of the Contract Price is to be retained by the Owner during the Defects Liability Period.
19.3 Contractor must rectify defects identified during the Defects Liability Period
Subject to reasonable access being provided, the Contractor must, within the Defects Liability Period and, if reasonably required by the Contractor, a further period of twenty (30) Business Day's after the expiry of the Defects Liability Period, rectify any defects in, and omissions from, the Works notified to the Contractor in accordance with Clause 19.1, during usual business hours and at no cost to the Owner. The Contractor is not responsible for rectifying any alleged defects or omissions which arise from the fact that something is still to be supplied or done by the Owner, or which relate to the maintenance of an item which is still to be performed by the Owner or is the responsibility of the Owner.
20 OWNER'S RIGHTS TO TERMINATE CONTRACT
20.1 Owner's right to give notice of intention to terminate Contract
If the Contractor:
a) fails to proceed with the Works with due diligence or in a competent manner;
b) unlawfully suspends the carrying out of the Works;
c) refuses or persistently neglects to remove or remedy defective work or improper materials so that the progress of the Works is significantly, adversely affected;
d) is unable to complete the Works;
e) fails to effect or maintain any insurance policy required by this Contract; or
f) is otherwise in Substantial Breach of this Contract, the Owner may give a written notice to
the Contractor by hand, registered post or facsimile transmission:
g) describing each alleged Substantial Breach of this Contract by the Contractor; and
h) stating the Owner's intention to terminate this Contract unless the Contractor remedies the alleged
Substantial Breach or Breaches within ten (10) Business Days after receiving the Owner's notice.
20.2 If Contractor fails to remedy Substantial Breach, Owner may terminate Contract
If the Contractor fails to remedy the Substantial Breach or Breaches set out in a notice given to it by the Owner in accordance with Clause 20.1 within the time stated in that notice, the Owner may, without prejudice to any other rights or remedies, terminate this Contract by further written notice to the Contractor provided that such a notice of termination must not be given unreasonably or vexatiously and, if so given, then such purported notice of termination is void, and of no force and effect.
20.3 Owner may not terminate Contract in certain circumstances
The Owner may not terminate this Contract if the Owner is in Substantial Breach of this Contract.
20.4 Owner's right to engage another contractor to complete the Works
If the Owner terminates this Contract in accordance with Clause 20.2, the Owner may engage another contractor to complete the Works.
20.5 Contractor entitled to reasonable remuneration if Contract terminated
If this Contract is terminated in accordance with Clause 20.2, the Contractor is entitled to a reasonable remuneration for the unpaid value of that part of the Works it carried out under this Contract to, and including, the Day on which this Contract is terminated.
21 CONTRACTOR'S RIGHTS TO TERMINATE CONTRACT
21.1 Contractor's right to give notice of intention to terminate Contract
If the Owner:
a) fails to comply with any of its obligations under Clause 7;
b) fails to comply with any of its obligations under Clause 11;
c) fails to provide the Contractor with any direction or other information requested by the Contractor under
Clause 9;
d) fails to give to the Contractor a written notice agreeing to a variation in accordance with Clause 12.5, 13.3 or
14.3 within five (5) Business Days after receiving a variation document provided by the Contractor;
e) fails to remedy any Substantial Breach of this Contract set out in a suspension notice given in accordance with Clause 16.2 within ten (10) Business Days after receiving that notice; or
f) is otherwise in Substantial Breach of this Contract,
the Contractor may give a written notice to the Owner:
g) describing the relevant breach or breaches of this Contract by the Owner; and
h) stating the Contractor's intention to terminate this Contract unless the Owner remedies the breach or breaches within ten (10) Business Days after receiving the Contractor's notice.
21.2 If Owner fails to remedy breach, Contractor may terminate Contract
If the Owner fails to remedy the Owner's breach or breaches of this Contract set out in a notice given to the Owner by the Contractor in accordance with Clause 21.1 within the time stated in that notice, the Contractor may, without prejudice to any other rights or remedies, terminate this Contract by further written notice to the Owner.
21.3 Contractor's right to recover on termination
If this Contract is terminated in accordance with Clause 21.2, the Contractor is entitled to, without prejudice to any other rights or remedies, recover from the Owner all losses, costs, expenses and damages it incurs or suffers as a result of, or otherwise in connection with, the Owner's breach or breaches, and the termination, as if the Owner had repudiated this Contract at law, and the Contractor had accepted the repudiation and elected to terminate this Contract. The Contractor may also remove from the Land, and retain, all unfixed materials, goods, plant and equipment previously provided by the Contractor.
22 TERMINATION FOR INSOLVENCY
22.1 Either party may terminate Contract for insolvency
Subject to Clause 22.3, either the Contractor or the Owner may terminate this Contract immediately on giving written notice to the other party, if the other party:
a) commits an act of bankruptcy, or is made bankrupt;
b) makes a composition or other arrangement with creditors;
c) assigns assets for the benefit of creditors generally;
d) being a company, becomes insolvent, enters into a deed of company arrangement, has a controller,
administrator or receiver appointed, or is in liquidation.
22.2 Requirements of notice
A written notice under Clause 22.1 must set out the ground or grounds relied on by the relevant party for the termination.
22.3 Enforceability of Clause 22.1 if the other party is a company
If ‘the other party’ referred to in Clause 22.1 is a company and enters into certain arrangements for the purpose of avoiding being wound up in insolvency or appoints an administrator, then the right to terminate the Contract pursuant to Clause 22.1 may be limited by the Corporations Act 2001 (Cth).
23 NOTICES AND ELECTRONIC COMMUNICATIONS
23.1 Copies of notices to be provided by one party to the other
The Contractor or the Owner must provide to the other party a copy of any:
a) report, notice, order or other document given in relation to the Works by any supplier of services (such as, for
example, gas, electricity, telephone, water and sewerage); and
b) certificate of inspection of the Works, as soon as practicable after receipt.
23.2 Methods for giving notices and other documents
Unless expressly stated otherwise elsewhere in this Contract, and subject to Clause 23.3, any written notice, or other document, to be given by a party under this Contract is deemed to have been given and received:
a) if delivered by hand to the other party, at the time of delivery;
b) if the other party is a company and the notice is left at its registered office or a principal place of business, at the
time that the notice is left at the registered office or principal place of business;
c) if sent by pre-paid or registered post to the other party at the address of the other party stated in this Contract,
or another address notified by the other party in writing, at 9.00am on the date that is two (2) Business Days
after the date of posting;
d) if sent by facsimile transmission to the other party at the facsimile number of the other party stated in this
Contract, or another facsimile number notified by the other party in writing, at the time set out in a written
confirmation of the successful transmission of the facsimile; or
e) if sent by email to the other party at the email address of the other party stated in this Contract, or another
email address notified by the other party in writing, at the time when the email leaves the Information System
used by the party whom, or on whose behalf, the email has been sent.
23.3 Notices given outside of usual business hours
If any written notice, or other document, is given at a time after 5.00pm on a Business Day, or during a Day that is not a Business Day, the notice, or other document, is deemed to have been given at 9.00am on the next Business Day.
23.4 Consent to electronic communications
a) The parties agree that facsimile transmission and email communications from either party to the other constitute
an 'electronic communication' as that term is defined in the Electronic Transactions Act 1999 (Cth) and
corresponding State legislation including the Electronic Transactions (Queensland) Act 2001.
b) The parties agree that any written notice, or other document, to be given by a party under this Contract may be
given and received via facsimile transmission or email, or both.
24 DELAY COSTS
24.1 Entitlement to delay costs
If the progress of the Works is delayed as a result of any of the causes set out in subparagraphs (a) to (h) (inclusive) of Clause 15.1, the Contractor is entitled to:
a) if a rate is stated for delay costs in Item 17 of the Schedule, delay costs at that rate for each Day that the
progress of the Works is delayed as a result of the relevant cause; or
b) if a rate is not stated for delay costs in Item 17 of the Schedule, the reasonable costs (including any additional
administration, management or supervisory costs, and overhead) the Contractor incurs as a consequence of
the delay resulting from the relevant cause,
provided that the Contractor gives to the Owner, or the Owner's Agent, a written claim for such delay costs, and which sets out the relevant cause of the delay, the time during which the progress of the Works was delayed as a result of that cause, and if Clause 24.1(b) applies, details of the reasonable costs incurred by the Contractor, by no later than the date that is thirty-five (35) Days after the Date of Practical Completion.
24.2 Payment of delay costs
If the Contractor gives to the Owner, or the Owner's Agent, a written claim for delay costs in accordance with Clause 24.1:
a) the delay costs claimed are added to the Contract Price; and
b) the Owner must pay the Contractor the delay costs claimed within five (5) Business Days after receiving the
written claim for delay costs.
24.3 Right not subject to claim for extension of time
To avoid doubt, the Contractor's right to delay costs under Clause 24.1 is not subject to the Contractor claiming an extension of the Date for Practical Completion in accordance with Clause 15.1.
25 STATUTORY WARRANTIES
25.1 Statutory warranties under part 3, division 2 of Schedule 1B of the Act
The warranties mentioned in division 2 of part 3 of Schedule 1B of the Act form part of this Contract.
25.2 Statutory warranties under part 3, division 3 of Schedule 1B of the Act
A warranty mentioned in a section of division 3 of part 3 of Schedule 1B of the Act forms part of this Contract if this Contract is of the type to which the section applies.
25.3 Statement of warranties on website
A statement of each of the warranties mentioned in divisions 2 and 3 of part 3 of Schedule 1B of the Act is set out on the 'Part 3 Warranties' page of Master Builders Queensland's website at https://mbqld.com.au/qbccact-schedule1b To the extent to which a warranty stated on that page is applicable to this Contract, the warranty is incorporated into this Contract.
26 LODGING OF A CAVEAT BY THE CONTRACTOR
26.1 No lodging of caveat if Resident Owner
A Contractor cannot lodge a caveat claiming an interest in the Land where the Owner is a Resident Owner.
26.2 Contractor's interest in the Land if non-resident Owner
If the Owner is not a Resident Owner, the Owner:
a) charges the Owner's interests in the Land with due payment to the Contractor of all amounts that may
become due to the Contractor arising out of, or otherwise in connection with, this Contract;
b) must, if requested by the Contractor, promptly deliver an executed mortgage in registrable form to secure the
charge;
c) consents to the Contractor lodging a caveat over all or any part of the Land to secure the Contractor's interest
in the Land;
d) must, if requested by the Contractor, do all things and sign all documents necessary to enable the Contractor
to lodge a caveat; and
e) must pay to the Contractor, on demand, all stamp duty and registration fees that are payable or paid on the
lodgement, withdrawal or release of any caveat or mortgage under this Clause.
27 RESOLUTION OF DISPUTES
27.1 Notice of dispute
If a dispute arises out of, or in connection with, this Contract, either party may give the other party a written notice of dispute setting out the details of the dispute, including any amount in dispute.
27.2 Dispute may be referred to Master Builders Queensland
By agreement between the parties, a dispute arising out of, or in connection with, this Contract may be referred to Master Builders Queensland for a without prejudice conference at any time provided that one of the parties is a member of Master Builders Queensland.
27.3 Referral of dispute to other relevant bodies
If the dispute set out in the notice of dispute is not wholly resolved within ten (10) Business Days after the giving of the notice of dispute, then either party may refer the dispute to:
a) a dispute resolution process administered by the Commission;
b) the Tribunal; or
c) a Court.
28 MISCELLANEOUS
28.1 Unfixed and demolished materials
All demolished materials, and unfixed building materials supplied by the Contractor and not paid for by the Owner, are the property of the Contractor, unless otherwise stated elsewhere in this Contract.
28.2 No adjustment to Contract Price for different dimensions
All dimensions in this Contract are approximate to the extent that they are based on dimensions estimated from any existing building on the Land.
28.3 Contractor's right to subcontract
The Contractor may subcontract any part of the Works, but is not relieved in doing so from any obligation or liability under this Contract or the Act.
28.4 Parties rights to assign Contract
Neither party may assign this Contract, or any right, benefit, obligation, liability or interest under this Contract without the prior written consent of the other party.
28.5 Intellectual property rights warranty if Owner provides design
If the Contractor is required to carry out the Works in accordance with:
a) any Plans or Specifications supplied by the Owner or the Owner's Agent; or
b) any document which incorporates designs which were prepared:
i) under instruction, supervision or direction from the Owner or the Owner's Agent; or
ii) from sketches supplied by the Owner or the Owner's Agent,
then the Owner:
c) warrants that the use of such Plans, Specifications or document do not infringe any copyright, moral right or other intellectual property right; and
d) must indemnify the Contractor against all actions, proceedings, claims, demands, costs, losses and damages in respect of any actual or alleged infringement of any copyright, moral right or other intellectual property right by the Contractor as a result of the carrying out of the Works.
28.6 Copyright if Contractor provides design
Where any Plans, Specifications or other design documents are supplied or prepared by the Contractor, the Owner acknowledges that:
a) the Contractor has copyright in those Plans, Specifications or other design documents; and
b) provided that the Owner has paid the Contractor all amounts claimed by the Contractor in respect of those
Plans, Specifications or other design documents, and all amounts due to the Contractor for the Works, the
Owner has a licence to use those Plans, Specifications or other design documents only for the purpose of
completing and maintaining the Works on the Land.
28.7 No waiver
Unless expressly stated otherwise elsewhere in this Contract, none of the provisions of this Contract, or any entitlement, remedy, obligation or liability arising out of, or otherwise in connection with, this Contract, may be waived, discharged or released for any reason whatsoever except with the prior written consent of the parties.
28.8 Governing law
This Contract is governed by, and is to be construed in accordance with, the laws of the State of Queensland in the Commonwealth of Australia.
28.9 Severance
If any provision of this Contract is void, voidable, unenforceable or illegal, it is to be read down so as to be valid and enforceable or, if it cannot be so read down, the provision (or where possible the offending words) is to be severed from this Contract without affecting the validity, legality or enforceability of the remaining provisions (or parts of those provisions) which continue to have effect.
28.10 Joint and several liability
If there is more than one person named as the Owner under this Contract, their obligations and liabilities are joint and several.
28.11 Owner's Agent
The person stated in Item 16 of the Schedule is to act as the Owner's Agent. Where no person is stated in Item 16, the Owner may, with the prior written consent of the Contractor (which must not be unreasonably withheld), appoint a person to act as the Owner's Agent. The Owner's Agent is to act on the Owner's behalf with respect to the administration of this Contract and the performance of the Owner's obligations under this Contract.
28.12 Acts of Owner's Agent deemed to be those of the Owner
Any act or omission by the Owner's Agent is deemed to be an act or omission of the Owner under this Contract. Any direction or instruction given by the Owner's Agent in writing is deemed to be a direction or instruction given by the Owner.
28.13 Architect as Owner's Agent
Any architect engaged by the Owner must be appointed by the Owner as the Owner's Agent for the purposes of this Contract.
28.14 Architect's instructions
a) Any direction or instruction which may be given by an architect acting as the Owner's Agent must be in writing,
and signed by the architect.
b) Any agreement to a variation of the Works by an architect acting as the Owner's Agent must be notified to the
Contractor in writing.
28.15 Replacement of Owner's Agent
The Owner may, with the prior written consent of the Contractor, replace the Owner's Agent.
28.16 Contractor to act as principal contractor
The Contractor is to act as principal contractor for the purposes of the Work Health and Safety Regulation 2011, and may exclude or remove from the Land any person who, in the opinion of the Contractor, fails to comply with the Work Health and Safety Act 2011 and that Regulation.
28.17 Exchange of Contract
a) This Contract may be executed in counterparts.
b) A counterpart may be a copy of this Contract printed from a facsimile or email transmission.
c) All counterparts together are taken to constitute one instrument and will not be binding until executed
counterparts are exchanged.
d) A copy of this Contract which has been executed by a party may be relied upon by a party to the same extent
as if it was an original of this Contract executed by the party.