Commercial / Builder & Subcontract Works Terms

1.1 These terms apply where you engage Leaky Roof for commercial, builder, head-contractor, developer or subcontract works, or for works priced on a schedule-of-rates basis, and apply instead of our General (Residential) Terms.

1.2 You warrant that you are acquiring the Services for business purposes. Nothing in these terms excludes, restricts or modifies any consumer guarantee, right or remedy under the Australian Consumer Law that cannot be excluded. You acknowledge that consumer guarantees can apply to acquisitions of $100,000 or less even where acquired for business purposes.

1.3 These terms prevail over any inconsistent term in your purchase order, head contract, subcontract or other document, unless Leaky Roof agrees otherwise in writing. Leaky Roof commencing or continuing work after receiving a document that references your terms is not acceptance of those terms.

2.1 A binding contract is formed when you do the earliest of: sign or return our quote; accept it in writing or electronically; issue a purchase order referencing our quote; or instruct us to proceed with, or allow us to commence, the works.

2.2 Electronic acceptance (including by email, a signed PDF, or an instruction to proceed) has the same effect as a handwritten signature under the Electronic Transactions Act 1999 (Cth), the Electronic Transactions Act 2001 (ACT) and the Electronic Transactions Act 2000 (NSW).

3.1 We supply and install the works described in the accepted quote.

3.2 Unless expressly included in the quote, the works exclude: structural framing and trusses; scaffold, edge protection and access equipment; the work of other trades; supply of windows, skylights, Heka hoods and proprietary items (we flash around them only); painting; below-ground stormwater; and rectification of pre-existing or others' defective work.

3.3 You are responsible for the adequacy, accuracy and completeness of all drawings, designs, specifications, engineering, set-out, levels, substrate, framing, trusses, roof pitch, penetrations, falls, drainage design, ventilation design and work by other trades. Leaky Roof is not responsible for errors, omissions, defects, non-compliance or inadequacy in any design, drawing, specification, structure, substrate, framing, truss, penetration, fall, roof pitch, drainage, ventilation, product selection or work supplied, directed or controlled by you, the principal, the builder, the designer, engineer, architect or another trade. Where no roof plan or final set-out is provided, quantities are provisional and are dealt with under clause 4.

3.4 Where we provide an inspection, report or assessment, it is a visual inspection only unless the quote states otherwise, limited to areas that are safely and reasonably accessible and visible at the time. We do not remove roofing materials, linings, insulation, flashings, cladding, solar systems or other building components unless included in the agreed scope.

3.5 Concealed or latent conditions - including concealed water-ingress paths, structural defects, timber decay, corrosion, and previous poor workmanship by others - may exist that cannot reasonably be identified during a visual inspection and may only become apparent once works commence or materials are removed. Our findings reflect the condition observed at the time of inspection only and do not guarantee future performance.

3.6 Concealed or latent conditions discovered after commencement are dealt with as a variation under clause 5. Nothing in this clause limits our obligation to perform an inspection with due care and skill, or any non-excludable right you have under the Australian Consumer Law.

3.7 Unless expressly included in the accepted quote, the works exclude investigation, design, certification, rectification or responsibility for pre-existing roof or building conditions, including existing leaks, concealed water-ingress paths, tile roofs with no sarking, missing, inadequate, deteriorated or failed sarking, asbestos-containing materials, hazardous materials, brittle or cracked tiles, deteriorated ridge capping, rotten battens, rotten fascia, rotten rafters, timber decay, corrosion, structural movement, inadequate ventilation, inadequate roof pitch, non-compliant historical works, prior poor workmanship, prior repairs, stormwater or drainage issues outside our scope, and defects caused by you, the principal, the builder, the designer, other trades or previous contractors.

3.8 Any inspection, report, measure, assessment or advice provided by Leaky Roof is for the Customer's use in relation to the specific works only. No principal, owner, builder, developer, insurer, consultant, certifier, engineer, architect, purchaser, tenant or other third party may rely on it without Leaky Roof's written consent.

4.1 Where the works are priced on a schedule of rates, the rates are fixed but the quantities shown are provisional and indicative only.

4.2 The final contract sum is determined by measuring the quantities actually installed and applying the agreed rates. Actual quantities may be more or less than estimated and the price adjusts up or down at the same rates. A difference between estimated and actual quantities is not a variation and is not a basis for a claim against Leaky Roof.

4.3 We will measure the completed works on completion. You may inspect and verify the measure within 5 business days. If you do not give us a substantiated written objection within that time, the measure is agreed.

5.1 A variation (additional or changed work) is priced at the agreed schedule rates or, where no rate applies, at a reasonable rate, and is confirmed in writing (email is sufficient) before the varied work proceeds, except for urgent safety works under clause 5.3.

5.2 Latent or concealed conditions discovered during the works - including existing leaks, concealed water-ingress paths, tile roofs with no sarking, missing, inadequate, deteriorated or failed sarking, asbestos-containing materials, hazardous materials, brittle or cracked tiles, rotten battens, rotten fascia, rotten rafters, timber decay, corrosion, structural defects, inadequate roof pitch, inadequate ventilation, non-compliant existing work, previous poor workmanship or previous repairs - are not included in the price unless expressly stated in the quote. We will notify you and price the additional work as a variation.

5.3 Where work is reasonably necessary to make the roof or site safe or to prevent further damage, we may carry it out without prior approval, charge it as a variation, and notify you as soon as practicable.

5.4 You must not direct us to carry out work that is unsafe or that does not comply with the National Construction Code, applicable Australian Standards, or manufacturer requirements (including minimum roof pitch). We may decline such a direction without breach.

5.5 You acknowledge that many existing tile roofs, older roofs and previously repaired roofs may have no sarking, inadequate sarking, deteriorated sarking or failed sarking. Unless the accepted quote expressly includes the supply, installation or rectification of sarking, Leaky Roof is not responsible for leaks, water ingress, condensation, heat transfer, dust, debris, wind-driven rain or performance issues arising from missing, inadequate, deteriorated or failed sarking. If sarking issues are discovered after works commence, any required rectification or additional work will be treated as a variation under this clause 5.

6.1 Payment is made by deposit on acceptance and by progress claims as set out in the quote (for example, 50% deposit / 40% on delivery of materials to site / 10% on completion for works over $25,000 ex GST). Each claim is due within 7 days of the date of the claim unless the quote states otherwise.

6.2 The Building and Construction Industry (Security of Payment) Act 2009 (ACT) (and, for works carried out in New South Wales, the Building and Construction Industry Security of Payment Act 1999 (NSW)) applies to the construction work under this contract. Nothing in these terms excludes, modifies or restricts our rights under that legislation, including the right to make payment claims, to receive payment schedules, to suspend work, and to refer a dispute to adjudication. To the extent any term is inconsistent with that legislation, the legislation prevails.

6.3 Each invoice or progress claim we issue may be a payment claim under the applicable Security of Payment Act.

6.4 If any amount is overdue we may: charge interest at 12% per annum accruing daily; recover our reasonable collection and enforcement costs (including legal costs) from you; and, after written notice, suspend the works until payment is received (in addition to any statutory right of suspension).

6.5 Any deposit you pay is used to secure Leaky Roof's schedule capacity, allocate labour and project resources, commence administration and planning, and allow Leaky Roof to order, purchase or commit to materials, subcontractors, equipment, access arrangements and supplier commitments. Once a deposit is paid, Leaky Roof may reserve dates, allocate crews, decline or defer other work, arrange logistics, order or commit to materials, and incur administrative, project management, supplier, access, mobilisation and demobilisation costs.

6.6 If you cancel, delay, suspend, reduce the scope, defer the works, terminate for convenience, or otherwise do not proceed with the works for any reason other than Leaky Roof's proven breach, Leaky Roof may retain from any deposit or prepaid amount all reasonable costs, losses and commitments incurred or committed by Leaky Roof, including materials ordered, purchased, received or committed to, supplier commitments, subcontractor commitments, scaffolding or access commitments, scheduling allocation, lost opportunity to book other work, labour allocation, project administration, project management, logistics, mobilisation, demobilisation, cancellation fees, restocking fees, freight costs, handling costs and any other reasonable cost or loss.

6.7 If Leaky Roof's reasonable costs, losses and commitments equal or exceed the deposit or prepaid amount, the deposit or prepaid amount may be retained in full. If those costs, losses and commitments are less than the deposit or prepaid amount, Leaky Roof will credit or refund the balance. This clause does not apply to the extent termination is caused by Leaky Roof's proven breach or to any liability that cannot be excluded by law.

7.1 You must pay our claims in full and may not withhold, deduct, set off or back-charge any amount against a claim unless: (a) you have given us prior written notice with reasonable particulars and substantiation of the amount; and (b) the amount is agreed by us in writing or determined by a court, tribunal or adjudicator. This clause does not limit any right you have that cannot be excluded under Security of Payment legislation.

8.1 We do not provide for retention unless it is expressly agreed in writing, stating the percentage (which will not exceed 2.5%), the cap, and the release dates. Where retention is agreed, it is released as to one half (50%) on practical completion and the balance (50%) at the end of the defects liability period, and is payable on those dates without further demand.

9.1 We are entitled to a reasonable extension of time, with no liability, for any delay caused by: weather or unsafe conditions; you or other trades; late, unsafe or unavailable site access; a site that is not ready; variations; latent conditions; suspension for non-payment; or a Force Majeure Event.

9.2 Any program or timeframe is an estimate only and time is not of the essence unless expressly agreed in writing. We are not liable for any loss you or any third party suffer arising from delay.

9.3 Where we attend site and are unable to carry out the works, or are delayed, stood down or required to re-attend, because the site is not ready or because of you, your site supervisor or other trades (including incomplete framing or structure, unavailable materials, blocked, unsafe or unavailable access, or other trades occupying the work area), you must pay our reasonable wasted-attendance, standby and re-mobilisation costs at the agreed rates or, where no rate applies, at a reasonable rate. We will record and substantiate such costs.

10.1 You must provide safe, clear and timely access and a site that is ready for our works (including completed structural framing and trusses, and power and amenities where required), and you must coordinate the work of other trades.

10.2 Scaffold, edge protection or an elevated work platform: the quote states who provides it. Where it is required for safe work and is not provided by you, we will supply it as a priced item (a variation if not already in the quote).

10.3 We are not liable for any delay or cost arising from a site that is not ready or from access that is restricted, unsafe or unavailable.

11.1 We work in accordance with the Work Health and Safety Act 2011 (ACT) (and the equivalent NSW legislation for NSW works). Scaffold, edge protection and fall protection are safety requirements, not optional extras. We maintain a minimum 3 metre clearance from power lines and may suspend or decline work until a hazard is addressed. Where you are the principal contractor for the site, you retain your principal-contractor duties under WHS law.

11.2 If asbestos-containing materials, lead paint, silica risks, contaminated materials or any other hazardous substances are discovered or suspected during the works, Leaky Roof may immediately suspend work in the affected area and notify you.

11.3 Unless expressly included in the quote and Leaky Roof is legally permitted and appropriately licensed to perform that work, Leaky Roof is not responsible for the identification, testing, removal, treatment, management, transport or disposal of asbestos-containing materials, lead paint, contaminated materials or hazardous substances.

11.4 You are responsible for ensuring the site is safe and for engaging appropriately licensed contractors to test, remove, treat or manage hazardous materials where required.

11.5 Any delay, suspension, access restriction, additional work, remobilisation, demobilisation, standby, testing, clearance or cost arising from hazardous materials is not a breach by Leaky Roof and is payable by you as a variation or delay cost.

11.6 You warrant that, to the best of your knowledge, you have disclosed to Leaky Roof before commencement any known or suspected asbestos-containing materials, lead paint, contaminated materials or hazardous substances at the site. You indemnify Leaky Roof against loss, cost or liability arising from undisclosed hazardous materials to the extent caused by your failure to disclose known or suspected hazardous materials, except to the extent caused or contributed to by Leaky Roof.

12.1 You are responsible for selecting and approving the colour, profile and finish, which is confirmed in writing on the accepted quote before materials are ordered. Where you do not nominate a colour, you authorise us to select the closest reasonable match using our professional judgement, and an exact match cannot be guaranteed.

12.2 Colours are selected from manufacturer ranges (for example, Colorbond). The finished product may differ in appearance from samples, swatches, digital screens and printed images, and may vary with lighting, sheen, viewing angle, scale and manufacturing batch. Such variation is inherent and is not a defect.

12.3 Once your colour selection is confirmed and materials are ordered or installed, a change of mind about colour is not a ground for rework, replacement, refund, discount or withholding payment, and any change you request is a chargeable variation under clause 5. This clause does not apply where the colour supplied differs from what you approved, or to your non-excludable rights under the Australian Consumer Law.

13.1 We warrant our workmanship and provide a 5-year workmanship guarantee, in addition to (and without limiting) the non-excludable consumer guarantees under the Australian Consumer Law and any statutory warranty under ACT or NSW building legislation.

13.2 The defects liability period is 12 months from practical completion. You must notify us in writing of any defect as soon as reasonably practicable. We will rectify workmanship defects attributable to us at no cost.

13.3 Our guarantee and the defects liability period do not cover materials covered by manufacturer warranties, damage from weather, third parties, other trades, structural or ground movement, maintenance-related issues, blocked gutters or downpipes, debris, lack of routine maintenance, defects in design, drawings, set-out, structure, framing, roof pitch, ventilation, drainage, materials or work supplied, directed or controlled by you or others, or any pre-existing or latent roof or building condition including existing leaks, tile roofs with no sarking, missing, inadequate, deteriorated or failed sarking, asbestos-containing materials, hazardous materials, brittle or cracked tiles, deteriorated ridge capping, rotten battens, rotten fascia, rotten rafters, timber decay, corrosion, non-compliant historical works, prior poor workmanship or prior repairs, except to the extent caused by Leaky Roof's own defective workmanship.

13.4 We are not liable for defects in work, materials or design that you or a third party supplied, directed or carried out.

14.1 We hold public liability insurance of $20,000,000; a certificate of currency is available on request. We do not hold professional indemnity insurance.

14.2 Where required by applicable ACT or NSW residential building legislation, we will obtain the required residential building work insurance (in the ACT) or Home Building Compensation insurance (in NSW) before commencing, and work cannot commence until any required building approval is issued and that insurance is in place.

14.3 You (or the principal) are responsible for contract works insurance and any principal-arranged or owner-arranged insurance for the site, unless we agree otherwise in writing.

15.1 Where the works relate to an insurance claim, your contract is with Leaky Roof, not your insurer, and you are responsible for lodging and managing your claim with your insurer.

15.2 Our quote is based on our own scope of works, not your insurer's scope or assessment. Any difference between our price and the amount your insurer agrees to pay is your responsibility.

15.3 You remain liable to pay us in full under these terms regardless of whether, when, or how much your insurer pays, or whether the insurer rejects, reduces or delays the claim. Payment is not conditional on settlement of your insurance claim.

16.1 Risk in materials passes to you on delivery to site or on installation, whichever is earlier. Title to materials remains with Leaky Roof until we have been paid in full for the works and those materials.

16.2 These terms create a security interest in the materials for the purposes of the Personal Property Securities Act 2009 (Cth). You consent to us registering that security interest and, to the extent permitted, waive your right to receive notices under that Act.

16.3 Where Leaky Roof has ordered, purchased, received or committed to materials, products, fabricated items, special-order items, colour-selected materials, custom-length materials or project-specific goods for the works, you must pay Leaky Roof for those materials and any associated supplier, cancellation, restocking, freight, handling, storage or disposal costs, whether or not the works proceed. If a supplier accepts cancellation or return and Leaky Roof receives a refund or credit, Leaky Roof will take that into account when calculating any amount payable by you.

17.1 Nothing in this clause excludes, restricts or modifies any consumer guarantee or other right under the Australian Consumer Law that cannot be excluded.

17.2 Subject to clause 17.1, and to the extent permitted by law, our total liability arising out of or in connection with the works is limited, at our option, to re-supplying the affected works or paying the cost of having them re-supplied, and in any event does not exceed the contract sum.

17.3 We are not liable for any indirect or consequential loss, including loss of profit, revenue, use, production, or liquidated damages or back-charges claimed against you by a third party, whether in contract, tort (including negligence) or otherwise.

18.1 We may suspend the works on written notice if you fail to pay any amount when due (in addition to our statutory suspension rights), or if the site is unsafe.

18.2 Either party may terminate for a material breach not remedied within 14 days of written notice, or immediately if the other becomes insolvent, bankrupt, or has a controller or administrator appointed.

18.3 On termination, cancellation, suspension, deferral or reduction in scope for any reason other than Leaky Roof's proven breach, you must pay Leaky Roof for all works carried out, materials supplied, ordered, purchased, received or committed to, supplier commitments, subcontractor commitments, access or scaffolding commitments, project administration, project management, scheduling allocation, labour allocation, lost opportunity to book other work, mobilisation, demobilisation, cancellation fees, restocking fees, freight costs, handling costs and any other reasonable cost, loss or commitment incurred or committed by Leaky Roof up to the date of termination, cancellation, suspension, deferral or reduction in scope.

19.1 A party with a dispute must first give written notice and the parties must attempt to resolve it by good-faith discussion, then by mediation administered by the Resolution Institute if not resolved within 10 business days.

19.2 Nothing in this clause prevents a party from seeking urgent relief or from exercising any right under Security of Payment legislation, including the right to adjudication.

20.1 Unless stated otherwise, prices in a commercial quote are exclusive of GST, and GST is payable in addition on provision of a valid tax invoice.

21.1 These terms, the accepted quote and any agreed variations are the entire agreement and prevail over any purchase order or other document.

21.2 This Agreement is governed by the laws of the Australian Capital Territory, except that works carried out in New South Wales are also subject to applicable NSW legislation. The parties submit to the non-exclusive jurisdiction of the courts of the ACT.

21.3 You may not assign this Agreement without our written consent. We may assign on written notice to you.

21.4 If any provision is invalid or unenforceable it is severed. To the extent these terms are a "standard form" or "small business" contract under the Australian Consumer Law, any term that would be "unfair" under Part 2-3 of the Australian Consumer Law is severed and read down to the extent necessary to avoid that result.

21.5 A failure to enforce a right is not a waiver of it.

If you have any questions about these terms, please contact us:

• Business: Leaky Roof Pty Ltd
• ABN: 99 619 565 614
• ACT Builders Licence: No. 2024368
• Address: Kambah, ACT 2902, Australia
• Phone: (02) 5133 5608
• Email: info@leakyroof.com.au
• Website: leakyroof.com.au