JCP Payment Terms
THE BUILDER AGREES TO:
(a) Begin the work on the Commencement Date.
(b) Carry out the Work in accordance with the Contract and the Contract Documents in a proper and workmanlike manner, using suitable materials.
(c) Ensure that the Work is carried out safely and is properly supervised by a Registered Building Work Supervisor.
(d) Observe and comply with all Laws.
THE OWNER AGREES:
(a) To pay the Price for the Work on the date or dates set out in the Contract.
(b) To pay for any Variations.
(c) If requested, give the Builder proof before the Work begins that the Price can be paid.
(d) If requested, give the Builder proof of ownership of the land on which the Work is to be carried out.
(e) To respond quickly and in writing to any requests the Builder makes for directions, variations or decisions.
(f) To pay all fees and charges in respect of the provision of any services such as electricity, gas, sewerage and water apart from the standard connection fees for sewerage and water services only.
(g) To allow access for the Builder, its employees, agents, and its subcontractors to the Site as convenient to both parties.
(h) To extend the Date for Practical Completion for any fair and reasonable request for an extension of time if a delay is caused by any circumstance outside the control of the Builder.
(i) To accept that where a delay is caused by circumstances as outlined in 2 (h), then the Builder is entitled to claim loss or expense resulting from the delay.
(j) To provide all weather access to the Site.
(k) Not discuss matters relating to the Work, or give any directions to, any of the Builder’s subcontractors, employees or suppliers.
(l) To promptly and fully inform the Builder about all matters that are likely to affect the performance of the Work or the Owner’s obligations under the Contract.
(m) Comply with any other reasonable requirements of the Builder to facilitate performance of the Work.
(n) That any legal entity or person signing these Conditions on behalf of the Owner hereby covenants that he or she has the authority to sign on behalf of and bind the Owner to this Agreement.
(o) Where the Owner is a tenant (and therefore not the owner of the land and premises where Work is to be undertaken or Goods are to be installed) that it warrants that full consent has been obtained from the Owner of the land (or the Owner’s authorised agent) for the Builder to enter and undertake Work on the land and premises.
(p) That they shall be personally liable for full payment of the Price for all works provided under this agreement and to indemnify the Builder against any claim made by the owner of the premises (howsoever arising) in relation to the installation of Goods or undertaking of any Work and the provision of any related Work by the Builder except where such claim has arisen due to the negligence of the Builder.
(q) That, upon request, they will provide proof of ownership of the land for proposed works or that they are a tenant with the express consent of the Owner of such land.
(r) This agreement may only be amended with the Builder’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Owner and the Builder
(s) In the event that:
the Owner requests a variation (requiring written details from the Owner);
an unforeseeable problem occurs or is discovered, requiring a variation; or
a variation is made.
The Builder will give the Owner a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.
(t) The Owner agrees to supply power, temporary lighting, toilet and first aid facilities to the Builder, as required.
(u) The Work will be performed by the Builder during business hours Monday to Friday 8.00am to 5:00pm unless otherwise stated in this Contract. Prices are quoted on the basis that works will be performed during business hours referred to in the clause. Work required by the Owner or otherwise necessitated outside of these hours, may increase the quoted price and constitute a variation.
(a) The Work may change during the performance of the Contract. These changes are Variations and, if a Variation causes the Work to cost more or be delayed the Builder may claim that extra cost from the Owner and may be entitled to an extension of time.
(b) These changes can be either for extra work or by leaving out part of the Work. They may come about because of a request by the Owner, or because the circumstances in which the Work is being carried out have changed or for other reasons set out in the Contract.
(c) The price of any extra work shall be the actual cost to the Builder together with the percentage as agreed between the parties and GST.
(d) If the changes requested involve less work by leaving out part of the agreed Work, the cost and GST will be deducted from the Price. The Builder will be entitled to keep an allowance for overhead and profit as agreed between the parties
PAYMENT FOR WORK
(a) If the Price is payable in a lump sum, the Owner will pay it on the due date stated in the invoice issued by the Builder.
(b) If the Price is payable by progress payments, the Owner agrees to pay it within seven of the invoice.
(c) The Owner will be charged interest on money not paid on time at the rate of five 8% per.
(d) The Builder is entitled to progress payments from the Owner pursuant to the Act.
(e) The Builder is entitled to issue Payment Claims to the Owner pursuant to the Act.
(f) Progress Payments are calculated according to the Builder’s terms and conditions including but not limited to quotes, variations, proposals and or invoices.
(g) The Reference Date for any Progress Payment and or Payment Claim issued by the Builder to the Owner is seven (7) days.
(h) If the Owner does not pay a Progress Payment, and or Payment Claim, the Builder reserves the right to:
charge interest in accordance with the Builder’s terms of trade;
halt any further work until such time as the outstanding payment is forthcoming without incurring any penalty;
exercise a lien over unfixed plant and materials supplied by the Builder;
recover the unpaid portion of a claimed amount as a debt due in Court;
make an adjudication application; or
serve notice on the Owner of the Builder’s intention to suspend carrying out construction works or supply goods and service.
(i) Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2009 (SA).
(j) The Owner also agrees that the Builder is entitled to serve notice on the Owner of the Builder’s intention to suspend work under the Act where:
the Owner fails to provide a payment schedule to the Builder and fails to pay the claimed amount by the due date on any payment claim.
the Owner provides a payment schedule to the Builder where the Scheduled Amount is less than the Claimed Amount; or
the Owner fails to pay an amount on the date determined by the Adjudicator.
(k) The Owner’s obligation to pay the Builder pursuant to the Building and Construction Industry Security of Payment Act 2009 (SA) survives termination or cancellation of this Agreement.
(l) The Owner accepts that email is a valid format to receive any documents under the Act, including but not limited to Payment Claims, Progress Payment claims, an application for adjudication, and mandatory notices (without limiting the preceding, taken to include a notice under section 17(2) of the Act).
(m) Where a progress claim is disputed, no payment schedule is provided, or payment is not made in accordance with a payment schedule by the relevant due date, the person who has served the payment claim can serve a notice of intention to apply for adjudication
(n) The Owner is not entitled to set-off or deduct, counterclaim, withhold, deduct, or claim a lien to whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.
(o) The Builder and the Owner agree that ownership of any Goods used for the Work shall not pass until:
the Owner has paid the Builder all amounts owing to the Builder; and
the Owner has met all of its other obligations to the Builder.
WHEN THE OWNER CAN TERMINATE THIS CONTRACT
(a) The Owner can at any time up until Practical Completion and subject to clauses 5(b), (c) and (d) terminate the Contract if the Builder does any of these:
commits an act of bankruptcy or, if a company, comes under external administration or goes into liquidation (but subject always to 5.558GA of the Corporations Act 2001 (Cth);
does not carry out the Work with due diligence or in a competent manner;
stops the Work without good reason;
does not start work on the Commencement Date (or any other date agreed between the parties for a reason that is within the Builder’s control); or
refuses to fix bad work or replace poor materials so that the Work is at risk;
refuses to finish the Work without lawful reason.
(b) If the default can be fixed the Owner must first write to the Builder and state the Owner’s intention to terminate the Contract if the Builder does not fix the default.
(c) If after 30 days the Builder has not replied or has not taken reasonable steps to fix the default, the Owner can terminate the Contract and hire another Builder.
(d) The Owner can only do this as long as the Owner is not also in breach of the Contract.
WHEN THE BUILDER CAN TERMINATE THIS CONTRACT
(a) If the Owner:
does not give proof of ownership of the land;
does not give proof that the Owner can pay the Price;
does not pay in full any monies due to the Builder;
commits an act of bankruptcy or, if a company, comes under external administration or goes into liquidation (but subject always to 5.558GA of the Corporations Act 2001 (Cth)),
subject to clauses 6(b) and (c) the Builder can either suspend performance of the Work or terminate the Contract.
(b) If the default can be fixed the Builder must first write to the Owner and state the Builder’s intention to terminate the Contract if the Owner does not fix the default.
(c) If after 5 days the Owner has not fixed the default, the Builder can either stop work until the default is fixed or terminate the Contract.
(d) If the Builder elects to terminate the Contract, the Builder will be entitled to payment for all unpaid work performed and unpaid costs incurred (including any variations under the Contract), an allowance for overhead and profit for the outstanding portion of the Work and will be entitled to retain any deposit paid by the Owner.
(e) If the Owner repudiates the Contract before practical completion, the Builder will also be entitled to lost profit which would otherwise have been earned on the balance of the Contract.
PROGRESS PAYMENTS AND PAYMENT CLAIMS
(a) At the Builder’s sole discretion, if there are any disputes or claims for unpaid Work, Goods or Services, then the provisions of the Act apply.
(b) Progress payments are calculated according to the Builder’s terms and conditions including but not limited to quotes, invoices, variations, and or proposals.
(c) The reference date for any progress payment claim issued by the Builder’s to the Owner is seven (7) days after receipt of a progress payment claim.
(d) If the Owner does not pay a progress payment claim, the Builder’s reserves the right to:
recover the unpaid portion of a claimed amount as a debt due in Court;
make an adjudication application; or
service notice on the Owner of the Builder’s intention to suspend carrying out construction works or supply goods and service.
(e) Nothing in this agreement is intended to have the effect of contracting out of the applicable provisions of the Act.
(f) Any payment claim and or progress payment claim, required notice under the Act or adjudication document under the Act is deemed to have been served onto the receiving party by email, personal delivery, courier, post, or fax to the recipient’s ordinary place of business.
(g) At intervals of not less than one month the Builder may submit to the owner a claim for progress payment showing the percentage of completed work regarding major items of work with the value of such works.
(h) The Owner must within 7 days of receipt of a progress claim made under clause 7 pay the amount claimed to the Builder in the progress claim with interest at the rate stated in these payment terms from the date such payment would have become payable under this clause had the Owner not so failed as until the payment of the same to the Builder by the Owner.
DEFAULT AND CONSEQUENCES OF DEFAULT
(a) Where an invoice, payment claim or progress payment has remained unpaid for seven (7) business days, a reminder will be sent to the Owner, in writing, and an administration fee of $250.00 will be charged to the Owner;
(b) If the invoice remains unpaid after the reminder has been provided, solicitors or collection agents will be engaged and the Owner agrees to indemnify the Builder for any legal and/or collection costs;
(c) Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of eight percent (8%) per annum pro rata, after as well as before any judgment;
(d) If the Owner owes the Builder any money, the Owner shall indemnify the Builder from and against all costs and disbursements incurred by the Builder in recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis, the Builder’s contract default fee, Court, arbitration, or any other institution filing fees and bank dishonour fees;
(e) Without prejudice to any other remedies the Builder may have, if at any time the Owner is in breach of any obligation (including those relating to payment) under these terms and conditions the Builder may suspend or terminate the supply of Service to the Owner;
(f) The Builder will not be liable to the Owner for any loss or damage the Owner suffers because the Builder has exercised its rights under this clause;
(g) Without prejudice to the Builder’s other remedies at law the Builder shall be entitled to cancel all or any part of any Work of the Owner which remains unfulfilled and all amounts owing to the Builder shall, whether or not due for payment, become immediately payable any money payable to the Builder becomes overdue, or in the Builder’s opinion the Owner will be unable to make a payment when it falls due;
(h) The Owner becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(i) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Owner or any asset of the Owner.
(a) Risk of damage to Goods or property used in connection or in relation to the Work passes to the Owner when the Builder arrives at the work to carry out Work and the Owner must insure their property, and any goods, prior to commencement of construction by the Builder;
(b) If any Goods are damaged or destroyed during the Work but prior to ownership passing to the Owner, the Builder is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Builder is sufficient evidence of the Builder rights to receive the insurance proceeds without the need for any person dealing with the Builder to make further enquiries;
(c) If the Owner requests the Builder to leave Goods outside their own premises, or outside the Builder’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Owner’s sole risk;
(d) The Owner acknowledges that in the event any toxic substances, mould, asbestos, vermin, or pest infestation are discovered at the place of work that it is their responsibility to ensure the safe removal of the same at its own cost and prior to the Work commencing;
(e) If such removal is required, the Builder will provide the Owner with a written variation outlining the price to remove the substance(s) and seek the Owner’s approval, in writing, prior to commencing work. The Owner shall obtain (at the expense of the Owner) all licenses and approvals that may be required for the Work;
(f) The Owner shall ensure that the Builder has clear and free access to the place of work at all times to enable them to undertake the Services. The Builder shall not be liable for any loss or damage to the site unless due to the negligence of the Builder;
(g) Where the Builder is required to provide services or goods, the Owner warrants that the structure of the area in or upon which they are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Builder shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the area be unable to accommodate the installation;
(h) The Owner acknowledges that the Goods supplied to complete the Work may fade, change or lose colour, expand, contract or distort due to weather and age, mark or stain or be damaged or disfigured by impact. Whilst the Builder will make every effort to match samples supplied in order to minimise such variations, the Builder shall not be liable in any way for such variations;
(i) Where the Owner has supplied Goods for the Builder to complete the Services, the Owner acknowledges and accepts responsibility and liability for the suitability of purpose, quality and any faults inherent in those Goods. the Builder shall not be liable for any defects in Goods, any loss or damage to property (or any part thereof), howsoever arising from the use of Goods supplied by the Owner. Goods supplied by the Owner must be available onsite prior to the commencement of Services;
(j) Any advice, recommendation, information, assistance or Work provided by the Builder in relation to incidental Goods or Services supplied is given in good faith, is based on the Builder own knowledge and experience and shall be accepted without liability on the part of the Builder and it shall be the responsibility of the Owner to confirm the accuracy and reliability of the same in light of the use to which the Owner requires the Builder to carry out the Work;
(k) Where the Builder gives advice or recommendations to the Owner, or their agent, regarding the suitability of Goods, and such advice or recommendations are not acted upon by the Owner, the Builder shall not be liable in any way whatsoever for any damages or losses that occur and any warranties, resupply or defects clauses will be revoked; and
(l) Subject to clause 9(l), the Owner accepts and acknowledges that Goods supplied and installed by the Builder require reasonable maintenance. the Builder reserves the right to not accept liability for such Goods where they may have become negatively affected, or unusable, due to the Owner’s failure to reasonably maintain such Goods and/or, follow instructions, guidelines, advice or recommendations provided by the Builder in regard to the proper maintenance of the Goods
(a) The failure by the Builder to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Builder right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
(b) This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties.
(c) Under no liability whatsoever to the Owner for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach the Builder of this Service Agreement (alternatively the Builder liability shall be limited to damages which under no circumstances shall exceed the Price.
(d) This document contains a summary of the Builder’s terms and conditions. The Owner accepts that, in accepting the Builder’s services, they accept the full Terms and Conditions, which are available on the Builder’s website or any time upon request.
(e) These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia.