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 The Customer may provide a report to the owner, property manager, strata manager, insurer, solicitor, conveyancer, lender, builder, engineer, certifier, or a purchaser or seller connected with the inspected property, for the limited purpose stated in the report.

3.9 Every report is based on the agreed inspection scope and is limited to areas that were safely accessible and visible at the time. It is not structural engineering advice, and it is not statutory certification, unless the report expressly says so. Leaky Roof does not guarantee that any insurer, certifier or regulator will accept it.

3.10 No unrelated third party may rely on a report for a different property, project or purpose.

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, terminate, defer, suspend or reduce the scope of the works, or otherwise do not proceed, for any reason other than Leaky Roof's breach or the exercise of a right you have under law, Leaky Roof may retain from any deposit or prepaid amount its reasonable costs and losses actually incurred or irrevocably committed as a direct result of your decision, determined in accordance with clause 6.8.

6.7 Where those amounts are less than the deposit or prepaid amount, Leaky Roof will credit or refund the balance within 14 days. Where they equal or exceed it, no refund is payable. This clause does not apply to the extent the termination is caused by Leaky Roof's breach, nor to any liability or right that cannot be excluded by law.

6.8 Any amount Leaky Roof retains or claims under clause 6.6, 9.3 or 18.3:

• must be limited to loss caused by the event relied on, and must not include any cost Leaky Roof would have incurred anyway;
• must be substantiated - Leaky Roof will provide a written breakdown, and copies of the supplier invoices, commitments or records relied on, within 14 days of your request;
• is reduced by every amount Leaky Roof actually recovers or reasonably could recover by mitigating, including supplier refunds and credits, materials returned, restocked or re-used on another project, and labour redeployed to other work. Leaky Roof will use reasonable endeavours to mitigate;
• must not be recovered twice, whether under another clause of these terms, under a variation, under an insurance policy, or from a third party; and
• in the case of lost opportunity to book other work, is limited to the lost margin on identifiable work Leaky Roof actually declined or could not reasonably reschedule or replace for the reserved period, and must not be claimed where the crew was in fact redeployed.

6.9 Nothing in clauses 6.5 to 6.8 limits any right you have under Security of Payment legislation or any other right you have that cannot be excluded by law.

7.1 You may withhold, deduct, set off or back-charge an amount against a claim only where:

• you have given us prior written notice identifying the amount, the ground for it, and reasonable particulars and substantiation of how it is calculated;
• the claim is made in good faith and the amount does not exceed a reasonable estimate of the loss actually attributable to the matter relied on;
• the amount has not already been recovered by you from us, from another party, or under an insurance policy; and
• where the matter is a defect or incomplete work that we are able to rectify, you have given us a reasonable opportunity to rectify it first, except where the matter is urgent or genuinely unsafe.

7.2 If we dispute a deduction, the dispute is dealt with under clause 19 and neither party's rights are prejudiced by the deduction having been made or resisted.

7.3 Nothing in clause 7 limits, and clause 7 is subject to, any right you have under Security of Payment legislation, including your right to issue a payment schedule and to have a dispute determined by adjudication.

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.

9.2A Leaky Roof is not liable for loss arising from a delay caused by an event in clause 9.1. Leaky Roof remains liable, subject to clause 17, for loss caused by a delay resulting from its own breach or failure to exercise reasonable care and skill. In either case you must take reasonable steps to mitigate your loss, and Leaky Roof is not liable for a third party's loss of a kind, or on a scale, that you did not disclose to us in writing before we priced the works.

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. Those costs are determined in accordance with clause 6.8, and we will record and substantiate them.

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.

11.7 Leaky Roof is not engaged to inspect, survey, sample, analyse or certify a site for asbestos and does not offer a formal asbestos-identification service. In the ACT, formal identification under the Work Health and Safety Regulation 2011 (ACT) must be undertaken by a licensed asbestos assessor, and Leaky Roof does not hold that licence. No inspection, report, measure, assessment or quote provided by Leaky Roof is an asbestos assessment or a statement that a site is free of asbestos, and none may be relied on for that purpose. The discovery of asbestos-containing material during the works does not, by itself, establish that Leaky Roof failed to perform where the material was concealed, was outside the agreed scope or could not reasonably have been identified through the work Leaky Roof was engaged to perform; it is a latent condition under clause 5. Leaky Roof remains responsible to the extent that loss or damage was caused or contributed to by its failure to take reasonable precautions, its negligent disturbance of known or suspected asbestos, or its failure to act on information provided to it. Nothing in this clause prevents Leaky Roof from treating a material as suspected asbestos, stopping work or requiring an assessment where reasonably necessary for safety, and nothing in it limits a right or remedy that cannot lawfully be excluded.

11.8 Where asbestos-containing material is identified, removal must be carried out by an appropriately licensed asbestos removalist, subject to any specific statutory exception. In the ACT this applies to removal of any quantity, whether or not the material is friable. Work will not recommence in the affected area until an independent licensed asbestos assessor has completed any legally required clearance inspection and issued the required clearance certificate. As an additional project and safety requirement, Leaky Roof must receive and verify a copy of the clearance certificate before its workers or subcontractors return to the affected area.

11.9 Section 26(2)(d) of the Building Act 2004 (ACT) requires an asbestos removal control plan to accompany a building approval application where the building is a class 1, class 2, class 3 or class 4 building (or a class 10 building associated with one of those) and was erected, or its erection started, before 1985. Where that provision requires a plan, the party responsible for the building approval application under the project arrangement must ensure that a document satisfying it is provided with the application. Where licensed asbestos removal is proposed, the plan must be prepared by the licensed asbestos removalist responsible for that work. Where no asbestos removal is proposed, the required form of the section 26 document must be confirmed in writing with the appointed certifier or the relevant ACT authority before lodgement. Work cannot commence until the approval is issued, and any resulting delay is dealt with under clause 9.

11.10 Before Leaky Roof attends the site, you must provide all asbestos registers, management plans, assessment reports, clearance certificates and other information in your possession or control concerning known or suspected asbestos at the site. Leaky Roof is entitled to rely on the completeness of the information supplied, except where the information is obviously inconsistent with conditions observed at the site. This does not limit any duty you have as the person with management or control of the workplace.

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. Leaky Roof must use reasonable endeavours to cancel or return the materials, to obtain a supplier refund or credit, and to re-use them on other work, and any amount payable by you is reduced accordingly and determined in accordance with clause 6.8. On request, Leaky Roof will provide the supplier invoices and evidence of what it recovered. Where you have paid for materials that Leaky Roof retains and re-uses, Leaky Roof will credit you their value.

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

17.2 Clause 17.3 does not limit Leaky Roof's liability for: death or personal injury caused by Leaky Roof, its employees or its subcontractors; physical loss of or damage to property caused by Leaky Roof's defective work or negligence, including water damage resulting from defective roofing work; fraud, dishonesty, or wilful or reckless misconduct; or any liability that cannot lawfully be limited.

17.3 Subject to clauses 17.1 and 17.2, and to the extent permitted by law, Leaky Roof's aggregate liability arising out of or in connection with the works is limited to the greater of the contract sum and the amount actually recoverable under Leaky Roof's public liability insurance in respect of the claim. Where the failure can be adequately remedied by re-performing the affected works, Leaky Roof may elect to do so instead of paying compensation, provided it does so within a reasonable time.

17.4 Subject to clauses 17.1 and 17.2, Leaky Roof is not liable for loss of profit, revenue, use, production or anticipated savings that is indirect or consequential in nature. Liquidated damages or back-charges levied against you by a third party are recoverable from Leaky Roof only to the extent they were caused by Leaky Roof's breach AND you disclosed the relevant liquidated-damages or back-charge regime to us in writing before we priced the works; otherwise they are excluded, because we cannot price an exposure we were not told about.

17.5 Each party must take reasonable steps to mitigate its loss, and neither party may recover the same loss twice, whether under these terms, under an insurance policy or from a third party.

18.1 We may suspend the works on 5 business days' written notice if you fail to pay an undisputed amount that is overdue and you do not pay it within that notice period, or immediately if the site is unsafe. Suspension must be proportionate to the amount outstanding. This clause is in addition to, and does not limit or qualify, our right to suspend under Security of Payment legislation, which we may exercise on the statutory terms.

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, deferral or reduction in scope for any reason other than Leaky Roof's breach or the exercise of a right you have under law, you must pay Leaky Roof for all works properly carried out and for its reasonable costs and losses actually incurred or irrevocably committed as a direct result, including materials ordered or committed to, supplier and subcontractor commitments, access and scaffolding commitments, project administration and management, mobilisation and demobilisation, and cancellation, restocking, freight and handling costs. Every such amount is determined in accordance with clause 6.8, which requires substantiation and mitigation and prevents double recovery.

18.4 Where Leaky Roof terminates other than for your breach or insolvency, or where the works do not proceed because Leaky Roof cannot lawfully or safely perform them, clause 18.3 does not apply and Leaky Roof will refund amounts paid less the value of works properly performed and materials installed and left in place.

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, which will not be unreasonably withheld. Leaky Roof may assign or novate this Agreement, on written notice to you, only to a related body corporate or to a person acquiring the whole or substantially the whole of Leaky Roof's roofing business, and only where that person holds the licences, qualifications and insurances required to perform the outstanding obligations, assumes those obligations including the workmanship guarantee and any accrued liability, and does not thereby materially reduce your rights or remedies. Any other assignment or novation by Leaky Roof requires your prior written consent. Subcontracting under these terms is not an assignment and does not relieve Leaky Roof of responsibility to you.

21.4 If a provision is invalid or unenforceable, it is severed to the minimum extent required and the remaining provisions continue in force. Leaky Roof will not seek to rely on a provision to the extent it is void, prohibited or unenforceable, including because it is an unfair contract term.

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