Terms of Engagement

JG King Pty Ltd ABN 21 006 627 210
Registered Building Practitioner CDB-U 49366.

1 Application

1.1 These Terms of Engagement apply to each engagement of you by JG King Homes. Generally you will be engaged by the delivery to you of a purchase order and your acceptance of that purchase order.

1.2 You shall be deemed to have accepted a purchase order by (amongst other things):

(a) performing the work the subject of the purchase order; or

(b) delivering an invoice to JG King Homes quoting JG King Homes’ purchase order number appearing on that purchase order.

2 Warranty and acknowledgements

2.1 You acknowledge and agree that any purchase order will be delivered to you upon the understanding that you carry on independent business and ordinarily provide work of the type sought in that purchase order to the public generally. By accepting any purchase order you warrant that is so.

2.2 Acceptance of a purchase order is acceptance of the rates and amounts set out in that purchase order. If you consider that any purchase order contains any errors or omissions you must not accept that purchase order and must instead advise JG King Homes in writing of those errors or omissions.

2.3 If you have any standard trading terms and conditions, those terms will not apply to any Engagement in any circumstances.

2.4 Once you have been issued with a purchase order in respect of a particular site you must not perform any other work at that site unless you have been issued with a purchase order for that other work. You agree that any such work performed without a purchase order will be conclusively deemed to have been performed gratuitously and you agree not to seek any payment in respect of same.

3 Performance of Work

3.1 In the performance of the Work you shall:

(a) ensure that you and your servants, agents, contractors and employees comply with all laws, regulations, ordinances, bylaws and all Australian standards and requirements of responsible authorities;

(b) ensure that you and your servants, agents, contractors and employees engaged in providing the Work are properly trained to perform their duties safely and without risk of injury to any person in the performance of the services;

(c) conduct all appropriate hazard identification and risk assessment reviews prior to performing any work; and

(d) immediately notify JG King Homes in writing of any circumstances likely to expose any person to risk of injury and of any incident or accident which resulted or may have resulted in any person being exposed to risk of injury.

3.2 You will ensure that:

(a) the Work is performed with due care, skill and diligence and in a safe, proper and workmanlike manner and in accordance with all applicable drawings and specifications;

(b) the Work is performed to the same standards of work quality and quality of materials as has been used in the construction of JG King Homes’ display homes;

(c) all goods supplied or incorporated by you are new, fit for the purpose for which such are supplied and of merchantable quality; and

(d) you do not perform work pursuant to a particular purchase order if the Site including any applicable component or substrate is not suitable or suitably prepared for such work.

4 Delegation of Performance

4.1 If you delegate the performance of any part of the Work to a person other than an employee of yours, you shall immediately advise JG King Homes in writing of that.

4.2 Despite any delegation by you, you retain full responsibility to JG King Homes for the performance of the Work.

5 Indemnity

5.1 You indemnify and will keep indemnified JG King Homes against all claims, liabilities, loss, cost and expense JG King Homes may incur arising out of breach of any of your obligations under these Terms of Engagement, or at law. Without limiting the generality of this clause, the indemnity extends to:

(a) making good any defects in material supplied by you or in your workmanship;

(b) making good any damage that you cause to other work or property;

(c) cleaning up and removing from the applicable Site all debris and rubbish created by you at the Site; and

(d) all costs and expenses incurred by JG King Homes including legal costs on an indemnity basis any way arising out of such a breach.

Your obligation to indemnify will arise notwithstanding that JG King Homes may not have paid any amount in respect of which you are required to provide indemnity.

6 Insurance

6.1 You will at your cost keep in place a public liability insurance policy (with an insurer reasonably acceptable to JG King Homes) indemnifying you, your contractors, officers, employees, agents and with a limit of at least $10 million per event. Such policy must be endorsed to note the interests of JG King Homes.

6.2 You will provide JG King Homes on request with a copy of such information regarding any such insurance as it may request.

7 JG King Homes Policies

7.1 You shall:

(a) comply with all JG King Homes Policies referable to the Work and instruct your employees , agents and contractors to do so, including when requested to do so by JG King Homes; and

(b) ensure that the terms of employment of your staff and the terms under which agents and contractors are engaged enable it to satisfy all JG King Homes Policies referable to the Work.

8 Payment

8.1 JG King Homes will pay you for work performed pursuant to an Engagement:

(a) the amount specified in the applicable purchase order; or

(b) if no amount is specified, a fair and reasonable price calculated at JG King Homes’ usual rates for such work;

(c) upon completion of all of the work specified in that Purchase Order and upon receipt of:

(i) a valid tax invoice quoting JG King Homes’ purchase order and job numbers; and

(ii) a written statement specifying the names of the persons engaged in performing the Work and the days upon which the Work was performed.

8.2 If JG King Homes considers the amount invoiced by you exceeds the properly amount due, JG King Homes may deliver to the Supplier a recipient created adjustment note. If you do not within 7 days of receiving a recipient created adjustment note dispute the accuracy of the adjustment note by notice in writing to JG King Homes, the adjustment note shall be conclusively deemed to set out the rights and obligations of the parties in respect of the transaction/s identified in such adjustment note.

8.3 In order to be a valid invoice an invoice must:

(a) claim for payment for work performed pursuant to a single purchase order (i.e. 1 purchase order per invoice);

(b) be for an amount equal to (or less than) that specified in the applicable purchase order.

9 Disputes and differences

9.1 If any dispute or difference arises between JG King Homes and the Supplier in any way arising out of the performance or failure to perform Work then:

(a) either party shall send by express mail to the other party a notice of dispute in writing, clearly identifying details of the dispute or difference;

(b) within 21 days of a notice of a dispute, the parties shall confer at least once to attempt to resolve the dispute or difference or agree on methods to resolve the dispute or difference; and

(c) if the dispute or difference has not been resolved or an agreement reached on methods to resolve the dispute or difference, the dispute shall be referred to the Independent Expert.

9.2 The Independent Expert will be:

(a) such persons as the parties may agree upon; and

(b) in the event the parties do not agree upon the identity of the Independent Expert, such a person as JG King Homes shall appoint. In doing so, it shall endeavour to:

(i) act reasonably; and

(ii) appoint a person who has expertise as to some or all of the matters the subject of the dispute or difference.

9.3 The Independent Expert shall determine in writing the dispute or difference acting as an expert and not an arbitrator and also which of the parties should bear the costs of his/her determinations and in what proportions they should bear such costs.

9.4 The determinations of the Independent Expert shall be conclusive and binding upon the parties.

9.5 The fees and expenses of the Independent Expert shall be in the first instance be paid by the party who refers the dispute or difference to the Independent Expert.

9.6 Neither party shall become a party to any suit at law or in equity against the other until the Independent Expert has made a determination in writing in accordance with this Supply Agreement.

10 Interpretation

10.1 In these terms of engagement:

Engagement means a contract entered into by your acceptance of a purchase order issued by JG King Homes.

JG King Homes means JG King Pty Ltd or such other company on his behalf a purchase order was issued

JG King Homes Policies means policies as published from time to time as part of the website the home page for which is: www.jgkinghomes.com.au.

Site means all aspects of the property at which Work is to be performed, including works performed by others.

Work means the work required pursuant to any Engagement

10.2 Waiver

(a) Any waiver of or representation not to rely upon any term or condition of these Terms of Engagement must be in writing and will only be effective to the extent that it is set out in writing.

(b) Each party represents to the other that it will not act upon any waiver of or representation not to rely upon any term or condition of these Terms of Engagement not in writing.

(c) A failure by one party to take action in the event of a breach of these Terms of Engagement by another party (whether expressed or implied) will not operate as a waiver of another or continuing breach of any other condition of these Terms of Engagement (whether expressed or implied) nor prevent that party from later taking legal action as a result of that breach.

10.3 Governing Law

These terms of engagement are governed by, and will be construed in accordance with the laws from time to time in force in the State of Victoria and each party irrevocably and unconditionally submits to the non-executive jurisdiction of the courts of Victoria and courts of appeal from them.

10.4 Notices

Any notice to you including a recipient created adjustment note shall be deemed to have been given and received by you:

(a) if sent by email, to either the email address stated in your service level agreement with JG King Homes or the email address to which the applicable purchase order was sent, on the day the email was sent;

(b) if sent by express mail, to either the address stated in your service level agreement with JG King Homes or the address identified in any invoice sent by you for the Work , on the business day after that notice was posted;

(c) if sent by ordinary mail, to either the address stated in your service level agreement with JG King Homes or the address identified in any invoice sent by you for the Work , 3 business days after that notice was posted.

11 Termination

11.1 If in JG King Homes’ opinion:

(a) you have has breached any of the terms of these Terms of Engagement;

(b) you not proceeded with the Work competently or with reasonable diligence; or

(c) you, or one of your servants, agents, employees or contractors fails to comply with any of JG King Homes’ Policies referable to the work JG King Homes may terminate the Engagement by notice in writing to you.

11.2 If an Engagement is terminated:

(a) JG King Homes may engage an alternate contractor to complete the Work;

(b) JG King Homes will be under no obligation to make any payment to you until after the alternate contractor has completed the Work and invoiced JG King Homes for the cost of doing so;

(c) the amount (if any) payable to you for work performed prior to termination of an Engagement shall be the amount set out in the purchase order for performance of the Work, less:

(i) the amount paid to any alternate contractor to complete the Work;

(ii) any damages, including liability for liquidated damages, suffered by JG King Homes by reason of any breaches of this agreement by the you and/or the termination of the Engagement; and

(iii) any payments made to you for performance of the Work.

(d) If the result of the calculation set out you above is negative (a shortfall), the Supplier shall pay to JG King Homes the amount of the shortfall within 7 days of a demand in writing for payment of the amount of the shortfall.