Terms & Conditions of Trade

1. HOME BUILDING ACT 1989 COMPLIANCE
   1. The parties agree that the Company is not requesting seeking to procure building work on residential properties including the repairing, renovation, decoration or protective treatment of a dwelling where the work (other than specialist work) the reasonable market cost of the labour and materials involved in which does exceeds the amount of $5,000.00.The Customer agrees that if the reasonable market cost of the labour and materials involved will exceed the sum of $5,000.00, then these terms and conditions will be incorporated into an alternative contract. That alternative contract will be that is designed for residential building works and complies with the Home Building Act 1989 (NSW) for contracts over the sum of $5,000.00.
   2. The Customer agrees and acknowledges that these Terms and Conditions apply only to residential dwellings where no specialist work as defined under the Home Building Act 1989 (NSW) is required and the value is less than $5,000.00 and that the Company therefore is not required to adopt all of the formal requirements, including holding a residential building licence.
   3. The Customer agrees that the Company has not allowed for the cost of any insurance pursuant by section 92 of the Home Building Act 1989 (NSW) on the basis that the value of labour and materials is less than $5,000.00 and the definition of residential building works has not been met and insurance has not been obtained. The procurement of insurance shall be at additional charge to the Customer if the value of works and materials does exceed the sum of $5,000.00.
   4. The parties agree that these Terms and Conditions may be used for non-residential building works within New South Wales for any value.
   5. The Customer agrees to enter into a separate contract with the Company where Home Building Act 1989 (NSW) requires the services to be defined as residential building works. In the event that the separate contract is required, the parties agree that the work done and the money paid will be considered to be included under that new contract and the administration of that new contract will incorporate anything done under these Terms and Conditions.
   6. The Parties agree that mere maintenance in the form of mere cleaning a property is not residential building works under the Home Building Act 1989 (NSW).
2. THE CONTRACT DOCUMENTS
   1. These Terms and Conditions are to be and are deemed by the parties to have so been read in conjunction the following documents:
      1. the Formal Instrument Of Agreement (FIOA);
      2. the Plans, specification and all other design documents referenced in the FIOA;
      3. the specifications referenced in the FIOA;
      4. the documents providing approval for the works to be done where approval is required;
      5. the hierarchy of documents stated in the FIOA;
      6. the Scope of Works for this Contract; and
      7. the jurisdiction and courts identified in the FIOA.
   2. Where a party is described with a different title in a document in the list above, that party name shall have the same meaning in these Terms and Conditions and vice versa.
      Drafting Note: for examples “Builder” and “Company”/ “Owner” and “Customer”
3. PREMISES
   1. The premises are as set out in the Contract.
   2. the Services shall be carried out at the Premises identified in the Contract.
4. PERIOD OF CONTRACT
   1. This Contract shall commence on the Commencement Date.
   2. The Company shall carry out the Services between the Effective Date and the Termination Date unless this Contract is otherwise terminated by in accordance with these Terms and Conditions prior to the Termination Date.
   3. The Company shall carry out the Services during the hours agreed in this Contract.
      PRICE
      the Customer shall pay the Company for the Services the amount agreed between the Company and the Customer in the Contract signed between the Company and the Customer.
   4. The Company shall be entitled to charge an additional fee where the conditions on the price set out in the above paragraph are not satisfied by the Customer’s premises.
   5. The additional fee authorized by clause 2.3 shall be the actual cost plus a margin agreed by the parties in the Contract. If no margin is agreed, then the margin of up to 20% shall be applied by the Company. A lower margin may be applied at the discretion of the Company.
      PAYMENT
      The Customer shall pay the Company in accordance with the following terms of payment;
      1. within seven (7) days of the presentation of any invoice where the maintenance is residential building works;
      2. within fourteen (14) days of the presentation of any invoice where the maintenance is not residential building works;
   6. The Customer shall not withhold any part of the payment as security;
   7. The Customer shall not make any reduction to the amount claimed on any invoice unless:
      1. the parties have agreed that work was not completed;
      2. the parties have agreed that a cheaper method of materials used in the carrying out of the maintenance may be used;
      3. the parties have otherwise agreed to a reduction in the amount payable by the Customer to the Company.
   8. The Customer shall pay the Company for all consumable items where a quantity of that consumable has been allowed for, for a given period;
   9. The Customer shall pay the Company for all agreed rates for consumables notwithstanding that the Company may source the same or the equivalent product at a cheaper rate than allowed in a quote or the contract;
   10. The Customer shall pay the Company by direct deposit, bank cheque or other method as approved from time to time by the Company;
   11. The Customer shall pay the Company a credit card surcharge not more than the amount charged by the credit card provider to the Company where payment is made by the Customer’s credit card;
   12. The Customer shall pay the Company “cash on delivery” for specific maintenance items that are ordered by the Company and where the Company is required to pay the supplier on “cash on delivery” terms of purchase of the goods supplied;
   13. The Customer shall pay the invoices of consultants directly where the Services require a consultant to advise the Company on the correct maintenance methodology;
5. THE SERVICES
   1. The Company shall provide the Maintenance Works set out in the Scope of Works included in the Contract.
   2. To the extent necessary, the Company shall maintain separate records of costs for Maintenance Works that are and are not residential building works.
   3. The Services, including the Maintenance Works, shall be completed to a standard that the Company, in is sole discretion, considers is reasonable.
   4. The Services are subject to the following exclusions:
      1. design advice;
      2. the obligations that are expressly stated in clause 8.1 to be the Customer’s obligations;
      3. demolition of structural members of a building; and
      4. weekend work – unless specifically priced.

      PREMISES

   5. the Customer warrants to the Company that the Customer has the authority to consent to the Company carrying out the Services at the premises;
   6. the Services shall be carried out at the Premises identified in the Contract.
   7. Where necessary, the Services shall be carried out offsite in order to produce construction work and to supply related goods and services to the Premises.
   8. the Customer shall at all times be responsible for managing those parts of the Premises which are not receiving any of the Services and the Company is not responsible for those parts of the Premises or people living, visiting or otherwise occupying those parts of the Premises.
6. PERIOD OF CONTRACT
   1. 1. This Contract shall commence on the Commencement Date.
      2. The Company shall carry out the Services between the Effective Date and the Termination Date unless this Contract is otherwise terminated by in accordance with these Terms and Conditions prior to the Termination Date.
      3. The Company shall carry out the Services during the hours agreed in this Contract.
         CUSTOMER’S OBLIGATIONS
         The Customer shall be responsible for all of the following:
         1. The provision of capacity to pay the Company for the Servcies;
         2. The provision of authority for the Customer to have the Services carried out at the Premises (such as evidence of ownership over or a lease of the Premises);
         3. The provision of uninhibited access to the Premises to carry out the Services;
         4. The provision of all architectural drawings and specifications to the Company;
         5. The provision of all engineering drawings and specifications to the Company;
         6. The provision of all design documentation in addition to architectural and engineering design;
         7. The procurement of consent to carry out the Services from local council and other statutory authorities;
         8. The payment of all fees, taxes, duties, contributions and the like charged by local council and other statutory authorities for the consent and the ongoing progress of the Services;
         9. The identification and removal of all asbestos and similar fibrous dangerous contaminates;
         10. The identification and removal chemicals which the Company considers to be unsafe or stored in a method that is unsafe are located at the premises;
         11. The removal of all pets to be restrained or removed by the Customer in order to carry out the Services;
         12. The remove all valuable or fragile furniture which is located where the Services are to be provided;
         13. To coordinate delivery of furniture and other chattels that are to be installed in the Premises after or during the course of the Company carrying out the Services;
         14. The payment all delivery fees from third party suppliers in addition to the contract price;
         15. The provision of evidence of occupier’s liability to the Company’s reasonable satisfaction;
         16. The provision of all electrical power required at the Premises to carry out the Services, at the Customer’s cost;
         17. The provision of all water required at the Premises to carry out the Services (including for cleaning equipment and where equipment requires the constant supply of water to operate or to do the works), at the Customer’s cost;
         18. The provision of all colour names of paints where matching the original paint colour is required (or at least the name from the Dulux colour range (or alternative agreed colour range) for a paint colour that will be acceptable to the Customer);
         19. The Provision of certification of designs for the maintenance for compliance with the National Construction Code (formerly the Building Code of Australia) and the relevant Australian Standards and other codes as applicable;
         20. The provision of all mandatory inspections, if required for the Services carried out, required by the Environmental Planning and Assessment Act 1979 (NSW) which shall be paid for by the Customer;
         21. The provision of due care, full compliance with the manufacturer’s recommendations for use and cleaning of any product or goods installed, and general Customer maintenance of the built/ repaired/ rectified works once the Company has completed the services to ensure that there is no further damage to the works caused by the Customer’s neglect or general failure to care, clean and otherwise protect (however described) the works from further damage (including excessive and inappropriate use of an area in high trafficable areas).
         22. the Customer warrants to the Company that the Customer has the authority to consent to the Company carrying out the Services at the premises;
         23. the Services shall be carried out at the Premises identified in the Contract.
         24. Where necessary, the Services shall be carried out offsite in order to produce construction work and to supply related goods and services to the Premises.
         25. the Customer shall at all times be responsible for managing those parts of the Premises which are not receiving any of the Services and the Company is not responsible for those parts of the Premises or people living, visiting or otherwise occupying those parts of the Premises.
      4. The Customer shall provide the following warranties to the Company:
         1. that the Customer will comply with clause 8.1 above;
         2. that the Customer will indemnity the Company against all costs for the Customer’s breach of clause 8.1 above.
         3. that the Customer has capacity to pay for the Services;
         4. that the Customer is aware that the Company is not a design company and did not rely on the Company providing design and Client-advice which the Customer should be paying separate consultants for.
         5. that the Customer is not an undisclosed trust of any kind;
         6. that the Customer is not an undisclosed agent or undisclosed nominee of another entity;
         7. that the Customer has provided the Company with all information available to the Customer and that the Customer could reasonably procure and has made reasonable and honest searches of all its records of documents to find and provide as much information about the premises to allow the Company to know what construction risk is involved in this Contract; and
         8. that any person or company engaged as a superintendent to supervise the Services and assess claims shall act honestly and fairly and is not the agent of the Customer.

   TERMINATION OF CONTRACT

   1. 1. The Company may at any time and from time to time, issue a Notice to Show Cause (“Notice to Show Cause”) on the Customer if the Company reasonably suspects the Customer is: insolvent or bankrupt or In breach of clause 3, 4 and/ or 5 of this Contract.
      2. The Company’s Notice to Show Cause shall:
         1. State that it is made under this clause;
         2. Be delivered by hand or registered mail;
         3. Set out the reasons why the Notice to Show Cause has been issued;
         4. State that the Customer has three (3) business days to show cause;
         5. Where any response to the Notice to Show Cause should be delivered; and
         6. That the Company shall be entitled to summarily terminate this Contract if reasonable cause is not shown by the Customer.
      3. If the Customer fails to show reasonable cause as required by the Notice to Show Cause, The Company may then, at its sole discretion, summarily terminate this Contract by written notice to the Customer.
      4. If this Contract is terminated in accordance with this clause, then, in addition to any other rights that the Company may have at law or in equity, the Customer:
         1. Shall immediately pay all unpaid Hire Costs and unpaid Additional Hire Costs as a debt due and payable; and
         2. Return all goods (if any) in the Customer’s possession to the Company.
      5. In the event that this Contract is or is determined to be frustrated, the Customer shall, at its cost, return all of the goods (if any) to the Company and shall pay all Hire Charges and Additional Hire Charges up to the date that this Contract was frustrated and all Additional Hire Fees applicable to the return of the goods (if any).
      6. In the instance of a Force Majeure Event, neither Party is liable for any delay or failure to perform an obligation (other than to pay money and return the goods) under this Contract:
      7. The Party affected by a Force Majeure Event shall notify the other Party as soon as practical of any anticipated delay or failure caused by a Force Majeure Event.
      8. The performance of each Party’s obligation under this Contract, other than to pay money, is suspended for the period of delay caused by the Force Majeure Event.
      9. If:
         1. performance of an obligation is prevented by an Event; or
         2. a delay caused by the Force Majeure Event exceeds thirty (30) days.
            a Party may terminate this Contract at the expiration of not less than seven (7) days’ notice to the other Party and the Customer shall, at its costs, return all of the goods (if any) to the Company within that same time.

   INSURANCE

   1. 1. the Company to do so. Company shall maintain all insurances that are reasonable required by the Customer and in accordance with legislative requirements.

   DISPUTE RESOLUTION

   1. 1. If a dispute arises in connection with this Contract, the Parties are bound by this clause.
      2. A Party wishing to have a dispute resolved agrees to give to the other Party notice specifying the dispute and requiring its resolution under this clause 16 (“Notice of Dispute”).
      3. Within 10 business days after a Notice of Dispute is given, a representative of Clear Sales’ senior management and a representative of the Supplier’s senior management shall meet and use all reasonable endeavours to resolve the dispute.
      4. Nothing in this clause prevents either party from proceeding direct to a Court or Tribunal for resolution of a dispute.

   PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)

   1. 1. The Customer shall not place any encumbrance or make any registration on the PPSR under the PPSA over any goods owned, operated, controlled or hired by the Company for carrying out the Services.
      2. Customer waives any right to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
      3. The Customer shall pay all costs, including legal costs, for the removal of any registration made on the PPSR contrary to these Terms and Conditions.
      4. nighttime and weekend loadings if the works are required to move from weekday to afterhours and/ or weekend work.

   CONFIDENTIALITY

   1. 1. The Parties shall comply with all legislative requirements in relation to the use and storage of private information given and received under this Contract;
      2. It is not a breach of this clause for any Party to disclose the negotiations of the Parties, the subject matter, terms and existence of this Contract, if that disclosure is:
         1. required by law;
         2. required for the purposes of any audit of a Party;
         3. made to any other entity for internal reporting or external auditing purposes where, for the purposes of that other entity’s financial reporting obligations, the Party to this Contract forms part of the economic entity of the other entity;
         4. necessary to enforce or to give effect to the provisions and obligations under this Contract;
         5. of information publicly available otherwise than as a result of a failure to observe obligations under this clause;
         6. to the Party’s professional advisers, bankers, financial advisers and financiers, on receipt of a written undertaking from that person to keep the terms confidential;
         7. to a Party’s subsidiaries, parent, insurers, directors, officers, employees, agents, assigns and beneficiaries or any of them; or
         8. made with the prior written consent of the Party to this Contract (that consent must not be unreasonably withheld) but only to the extent necessary for that purpose.
      3. The Parties will refrain from making any negative or disparaging statements against each other to any third parties including any client, employee or the media.

   NOTICES

   1. A notice or other communication connected with this Contract (“Notice“) must be in writing.
   2. In addition to any other method of service provided by law, the Notice may be:
      1. sent by prepaid post to the address of the addressee set out in this Contract or subsequently notified to the other Party by the addressee in writing;
      2. delivered at the address for service of the addressee; or
      3. sent by facsimile to the facsimile number of the addressee set out in this Contract.
   3. If the Notice is sent or delivered in a manner provided herein, it will be treated as given to and received by the Party to which it is addressed if:
      1. sent by post, on the second Business Day (at the address to which it is posted) after posting;
      2. delivered by hand before 5.00pm. on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery; or
      3. sent by facsimile after 5.00pm, on the next business day after the facsimile was sent.
   4. A Notice sent or delivered in a manner provided by this clause will be treated as validly given to and received by the Party to which it is addressed even if:
      1. the addressee is absent from the place at which the Notice is delivered or to which it is sent; or
      2. the Notice is returned unclaimed.
7. GENERAL PROVISIONS
   1. 1. Nothing in this Contract will be construed as giving either Party to this Contract any right, title or interest in or to any trademarks, copyrights, or other intellectual property rights of the other Party. Neither Party will, except as authorised in writing by the authorising Party, use the other Party’s trademarks, copyrights, or other proprietary information or systems without their written consent.
      2. The Company and the Customer agree that this Contract is governed by the law of the state of New South Wales, and the Parties submit to the jurisdiction of the courts of that State.
      3. Other than prices, and the Parties, these Terms and Conditions prevail over the Contract Form and the Hire Schedule in the event of any inconsistency;
      4. Unless otherwise stated in this Contract, each Party shall do all things necessary to give effect to this Contract.
      5. This Contract may be signed as counterparts and the Contract shall be deemed to be constituted by all of the counterparts.
      6. This Contract shall only be varied or amended by the Parties in writing in Deed form.
      7. The Company’s rights under this Contract are cumulative and without prejudice to each other or its rights generally.
      8. The Contract comprises the whole of the Contract between the Company and the Customer on all subject matter included in this Contract and supersedes all and any previous representations or Contracts.
      9. Each Party shall bear its own costs in the preparation and execution of this Contract
      10. Each Party agrees and acknowledges that it has had or has sufficient opportunity to have independent legal advice in relation to the terms and conditions and operation of this Contract.
      11. Nothing in this Contract is intended to create a partnership, joint venture or a relationship of agency or employer and employee between Clear Sales and the Supplier. Neither Party has the authority or power to bind the other Party without the other Party’s specific consent.

   DEFINITIONS

   1. 1. In this Contract, unless the context expressly or impliedly states otherwise, the following terms shall have the following meanings:

   Business Day	means a day that is not a Saturday, Sunday, Public Holiday or a Bank Holiday in the place where the Premises where the Services are to be carried out.
   Contract	means either: (a) these terms and conditions if no other document is added to them; or (b) the Contract which includes these Terms and Conditions as a contract document.
   Claim	means all claims, applications, legal processes, demands made at law and in equity for any direct or indirect or consequential losses, damages, costs (including legal costs on an indemnity basis), debts, dues, interest, causes of action in relation to facts, matters or circumstances arising out of or in connection with this Contract including facts known or not knowable as at the time of entering into this Contract or when any claim is made or cause of action asserted to have arisen or occurred.
   Commencement Date	means the date that this Contract is signed by the last Party to sign this Contract.
   Company	means SGB Maintenance Services Pty Ltd (A.B.N. 27 625 078 971).
   Customer	means the Party who engages the Company but does not include the agent or financier of the party who engages the Company.
   Effective Date	means the date that the customer and the Company agree that the Maintenance Words shall commence.
   Force Majeure Event	means any one or more of the following where not contributed to by either Party: (a) an act of God; (b) war, riot, insurrection, vandalism or sabotage; (c) strike, lockout, ban, limitation of work or other industrial disturbance; and (d) any law, rule, regulation or executive or administrative act or order of a government or governmental agency.
   Further Term	means the period from the end of the Initial Term to the Termination Date.
   Initial Term	means the period between the Commencement Date and the Termination Date.
   Legislative requirement	includes: a) Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction for work under this Contract or the particular part thereof is being carried out, including the Building Code of Australia; b) certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the carrying out of work under this Contract; c) any documentation enforceable under any statute, regulation, order, rule or subordinate legislation; d) the requirements of all Authorities in connection with work under this Contract; and e) fees and charges payable in connection with the foregoing;
   Maintenance Works	means (a) the construction work to repair, replace or remove part of a building that is already built to overcome a problem or problems which have developed since the building was constructed; (b) the cleaning of a building, part of a building, or of equipment within a building to prevent damage or to prevent the building or space from being habitable or useable for want of cleaning.
   Party	means the Company or the Customer
   Parties	means the Company and the Customer
   PPSA	means the Personal Property Securities Act 2009 (Cth) and any regulations made under or pursuant to that legislation, as amended from time to time.
   PPSA	means the Personal Property Securities Register established under the PPSA.
   Residential building work	means (1) any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. (2) Each of the following is included in the definition of “residential building work”: (a) roof plumbing work done in connection with a dwelling, (b) specialist work done in connection with a dwelling, (c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation).
   Services	means the Maintenance Works and all other obligations under the Contract, including in these Terms and Conditions, required by the Customer and to be carried out by the Company under the Contract.
   Term	means: (a) The Initial term, if there is not any Further Term, or (b) The Initial Term plus any Further Term.
   Terms and Conditions	means these “Terms and Conditions”.
   Termination Date	means the earlier of either: (a) the date that the last of the Equipment is returned by the Customer and paid for by the Customer; (b) the date which this Contract is terminated by mutual consent of the Parties; or (c) the date which this Contract is terminated by either Party in accordance with the terms of this Contract.

   INTERPRETATION

   1. In these Terms unless the context otherwise requires:
      1. the singular includes the plural and vice versa;
      2. words importing a gender include all genders;
      3. the schedules (if any) form part of this Contract;
      4. reference to a Party includes that Party’s personal representatives, successors and permitted assigns;
      5. reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for it or incorporating any of its provisions to the extent that they are incorporated;
      6. reference to a monetary amount, $, AUD, Australian Dollars is to the lawful currency of the Commonwealth of Australia;
      7. reference to an Contract includes all subsequent amendments to it entered into in accordance with its terms to the extent to which those amendments are expressly or impliedly permitted by this Contract;
      8. reference to time and dates are to the time in Sydney, New South Wales, Australia time, even if the relevant obligation is to be performed elsewhere; and
      9. reference to a clause or Party is to a clause of or a Party to this Contract.
      10. In the interpretation of the Contract, no rule of contract interpretation applies to the disadvantage of one Party on the basis that it put forward this Contract or any part of it.

Annexure “A” to the SGB Maintenance Pty Ltd Terms & Conditions

Item 1 The Standard Margin:
Twenty Percent (20%) of the actual or agreed cost for costs up to $5,000.00 ex GST
Seventeen Percent (17%) of the actual or agreed cost for costs up to $5,000.00 ex GST to $9,999.99
Fifteen percent of the actual or agreed cost for costs over $10,000.00 ex GST

Item 2 Schedule of Rates:

Item 3 Call Out Fee

Item 4 Address Service of Notices on Company

Item 5 Details of Defined Dates