Background

A.  These terms and conditions apply to any Work Order that is issued by Carlisle Homes Pty Ltd (ACN 106 263 209) (the Company) and accepted by a contractor for the purpose of providing domestic building trade services (Contractor). 

B.  In accepting a Work Order, the Contractor agrees to provide the Services on the terms and conditions set out in this agreement (Agreement). 

Agreed Terms

1. Appointment 

1.1  The Company appoints the Contractor, and the Contractor accepts the appointment, to provide the services described in Item 1 of Schedule 1 (Services) to the Company. 

1.2 The Contractor is an independent contractor. Nothing in this Agreement:

a.  makes or shall be deemed to make the Contractor or any of the Personnel an 
employee of the Company; b. constitutes a relationship of partnership or joint venture between the Parties.  

1.3  Further, nothing in the dealings between the Contractor and the Company in which any of the Personnel are involved gives rise to any legal relationship between the Personnel and the Company. 

1.4  Subject to the terms of this Agreement, the parties acknowledge that the Contractor is solely  responsible  for  controlling  the  manner  in  which  the  Contractor  provides  the Services. 

1.5 The Contractor has no authority to incur, and must not incur, any obligation on behalf of the Company except with the Company’s written instructions or in accordance with this Agreement. 

1.6 Except as provided in this clause, the Contractor may provide services to other parties. However:  

a. provision of any services by the Contractor to other parties must not interfere 
with or prevent the provision of the Services to the Company; and  
b.  the Contractor must ensure that the Contractor is able to provide the Services  
to the Company during the term of the Agreement at any times mutually agreed 
or as reasonably required by the Company. 

1.7  In  providing  the  Services,  the  Contractor  will  complete  the  projects  specified  by  the  Company within the time frames and to the standard specified by the Company.

1.8  All work carried out by the Contractor shall be in accordance with any relevant Australian Standards and industry best practice. ‘Industry best practice’ means that degree of skill, care, prudence and foresight which would reasonably and ordinarily be expected of a skilled  and  experienced  contractor,  performing  the  same  type  of  Services  as  the Contractor under the same or similar circumstances.

1.9  Where it is reasonably open to the Contractor to do so, the Contractor may delegate the performance  of  the  Services  to  a  third  party  (Delegated  Party)  provided  that  the Company  approves  such  delegation  and  the  Delegated  Party  executes  a  deed  poll  containing terms reasonably required by the Company including but not limited to terms that  are  similar  to  those  in  this  agreement regarding  confidentiality  and  intellectual property. The Contractor must procure that the Delegated Party does not, at any time, act outside of the scope of any authority properly delegated to the Contractor and/or to the Delegated Party from time to time. 

1.10   In its discretion, at any time the Company may instruct the Contractor to cease providing all, or any of, the Services for a period determined by the Company. If this occurs, the Contractor will provide the Company with an invoice for all work performed up to and including the date they were instructed to cease providing the Services which will be paid by the Company in accordance with clause 2.1. 

1.11  The Company may vary the Services from time to time, following consultation with the Contractor.

  
1.12   The Contractor must at the Contractor’s cost, immediately rectify any deficiency in the provision of the Services identified by the Company and notified to the Contractor. 

1.13    During the term of this Agreement, the Contractor and the Personnel must not: 
a.  have  an  actual,  potential  or  perceived  interest  which  conflicts  with  the 
Company’s interests; or b. compete with the Company.

1.14    The  Contractor  and  each  of  the  Personnel  must  comply  with  applicable  Company  policies and procedures relevant to the provision of the Services which are notified to the  Contractor,  although  those  policies  and  procedures  do  not  form  part  of  this Agreement.  The Company may amend or withdraw its policies or create new polices from time to time as it sees fit and notify the Contractor accordingly.  

 
1.15    The Contractor must ensure that the Contractor and all Personnel observe safe work practices  and  comply  with  the  requirements  of  relevant  work  health  and  safety legislation, regulations and codes of practice when providing the Services. 

1.16  In respect of its employees and any persons deemed by law to be its employees or workers for statutory purposes (including any of the Personnel), the Contractor must comply with all relevant laws, including but not limited to:

a.  PAYG withholding tax laws;  
b.  relevant council laws;  
c.  superannuation laws; 
d.  workers compensation laws; 
e.  pay-roll tax laws; 
f. any applicable industrial award, agreement or legislation;  
g.  work health and safety laws; and 
h.  anti-discrimination and equal opportunity laws.

1.17    If the Company suffers any loss or damage (including consequential loss or damage as a result of the Contractor or any of the Personnel failing to comply with the Contractor’s obligations under this Agreement) then, to the extent permitted by law, the Contractor must indemnify the Company in respect of that loss or damage.  

1.18  The  Contractor  shall  be  responsible  for  rectification  of  defects  relevant  to  Services provided, at the Contractor’s cost. 

2. Invoicing and Payment

2.1  The Company must pay the Contractor a fee (Service Fee), as set out in Item 2 of Schedule 1, subject to the receipt of a valid tax invoice from the Contractor (Invoice).

2.2  The payments stipulated in this clause 2 shall be the only payments the Contractor will receive from the Company for all expenses and disbursements the Contractor incurs in providing the Services.

3. Contractor's Warranty

3.1  The Contractor warrants to the Company that the Contractor and each of the Personnel have the knowledge, skills, experience, expertise, resources and capacity to provide,  and will  provide,  the  Services  under  this  Agreement  competently, diligently  and innaccordance with any professional standards reasonably applicable to the Services. The Contractor warrants that the Contractor provides the level of supervision necessary to enable any of the Contractor’s Personnel to undertake their job safely. 

3.2  If the Contractor is required to hold any licence, authorisation, permit or qualification (including  a  labour  hire  licence  under  any  applicable  labour  hire  licensing  laws) (Licence)  in  order  to  provide  the  Services  lawfully,  the Contractor  warrants  to  the Company that the Contractor holds that Licence on the date of this Agreement and will keep that Licence current during the term of this Agreement. If the Licence is cancelled, suspended, withdrawn or lapses during the term of this Agreement, or if there is a risk of this occurring, the Contractor must immediately notify the Company. 

3.3  The warranties in this clause 3 are deemed to be given continually during the term of the Agreement.

3.4  The  Company  may  request  that  the  Contractor  provide  Licenses, information, certificates, documents and reports confirming that the Contractor is complying with its obligations under this Agreement. The Contractor must provide such information upon request at the Contractor’s cost.

4. Confidentiality

 4.1  Confidential  Information  means  any  information  (in  any  form,  whether  written, electronic or otherwise):

a. relating to the terms of this Agreement; or 
b. belonging to the Company which the Company regards as confidential, including but not limited to: 
      i.  turnover  figures,  future  promotions,  prices  of  products  and  services, costs  of  products  and  services,  information  relating  to  clients  and employees, any marketing information such as client lists and financial information;  
     ii.  information  and  knowledge  of  product  formulations,  production equipment and planning and techniques; 
     iii.  any document or information marked as confidential and any information 
received or developed by the Contractor in the course of the engagement which is not publicly available and relates to processes, equipment and techniques used by Carlisle Homes in the course of its business; 
      iv.  technical documentation and data, blueprints and manuals; 
      v.  supplier  lists  and  customer  lists  (including  the  identity,  requirements, 
contact person, account information and credit history); 
      vi.  contractual, technical and production information; 
      vii.  business and marketing plans; 
      viii.  notes and developments regarding confidential information; 
      ix.  any of Carlisle Homes’ trade secrets, confidential dealings or operations; 
      x.  any information (electronic, hard copy or otherwise) concerning Carlisle Homes or any related entities of Carlisle Homes; and 
      xi.  other information designated as confidential by Carlisle Homes, 
      xii.  which the Contractor receives, becomes aware of, develops, creates or 
generates  in  the  course  of  or  incidental  to  the  operation  of  this 
Agreement; or

c.  relating directly or indirectly to research or development by, accounting for, or 
the  marketing  of  the  business  of,  the  Company  including  current  and  future 
marketing or business plans; or 
d.  disclosed  to  the  Contractor  on  the  express  basis  that  such  information  is 
confidential; or 
e.  which  might  reasonably  be  expected  by  the  Company  to  be  confidential  in 
nature,  other than any information which is in the public domain (except through a breach of the confidentiality of that information).

4.2  The Contractor will at all times maintain the confidentiality of all Confidential Information belonging  to  the  Company  and  will  not,  at  any  time  during  or  after  the  term  of  the Agreement:

a.  disclose or permit to be disclosed to any person or entity; or 
b.  use for the Contractor’s own benefit; or 
c.  use to the detriment of the Company, 
any such Confidential Information, except:  
d.  if that information is or becomes public knowledge, other than as a result of a 
breach of confidentiality; or 
e.  as authorised in writing by the Company; or  
f.  to the extent reasonably required for the performance by the Contractor of the 
Contractor’s obligations under this Agreement. 

4.3  The Contractor will, on termination of this Agreement or as soon as reasonably possible after receiving a written request to do so from the Company, return to the Company all records, whether in hard copy or electronic form, containing any Confidential Information which is in the possession or under the control of the Contractor. 

4.4  The Contractor will procure that any of the Personnel involved directly or incidentally in providing the Services are obliged to maintain confidentiality in similar terms to the above obligations in the form of a deed poll in favour of the Company, and will do all things reasonably necessary to ensure that such undertakings are and remain enforceable.

5. Intellectual Property

5.1  The Company grants or will procure for the Contractor a non-exclusive licence to use the Company’s pre-existing Intellectual Property Rights, as reasonably necessary solely to give effect to this Agreement, strictly in relation to the provision of the Services by the Contractor.

5.2  If, during the term of the Agreement the Contractor or any of the Personnel involved in the provision of the Services develop any new Intellectual Property Rights using the Company’s resources, or which relate to or are used in the business of the Company, or which is otherwise used in the provision of the Services (New IP), then:

a.  the Contractor acknowledges and agrees that the Company owns the intellectual property in the New IP; 
b.  the  Contractor  assigns  all  Intellectual  Property  Rights  in  the  New  IP  to  the Company; 
c.  the Company is the absolute owner of all New IP; 
d.  the Contractor must not assert any proprietary or other rights to the New IP; 
e.  the Contractor must give all assistance and sign all documents, both during and 
after the term of the Agreement, reasonably required by the Company in respect 
of the New IP; and  
f.  the Company grants the Contractor a non-exclusive licence to use the New IP 
as is reasonably required for the provision of the Services. 

5.3  The Contractor:

a.  acknowledges and agrees that the Company has copyright in  relation to any 
works of the Contractor as author in connection with provision of the Services 
(Copyright); 
b.  the Contractor assigns all copyright to the Company, absolutely; 
c.  the Contractor must not assert any proprietary or other rights to Copyright; 
d.  the Contractor must give all assistance and sign all documents, both during and 
after the term of the Agreement, reasonably required by the Company in respect 
of Copyright; and 
e.  the Company grants the Contractor a non-exclusive licence to use the Copyright 
as is reasonably required for the provision of the Services. 

5.4  The Contractor consents for the benefit of the Company to all or any acts or omissions that would ordinarily constitute an infringement of the Contractor’s moral rights under the Copyright Act 1968 (Cth) as an author which may arise  in the course of the Contractor’s engagement with the Company or using the Company’s resources. Moral rights has the meaning given to it in the Copyright Act 1968 (Cth) and includes:

a.  a right of attribution of authorship; 
b.  a right not to have authorship falsely attributed; and 
c.  a right of integrity of authorship. 

5.5  After the termination of this Agreement, the Contractor must not use for any purpose or disclose to any third party any of the Company’s Intellectual Property including any New IP.

5.6  Intellectual Property Rights include, but are not limited to, ideas, patents, copyrights, rights in circuit layouts, know how, inventions, designs, trademarks whether registered or unregistered,  the  right  to  have  Confidential  Information kept  confidential,  and  any application or right to apply for registration of the rights listed in this clause 5.6. 

5.7  The Contractor will procure that any of the Personnel involved directly or incidentally in providing the Services are obliged to deal with Intellectual Property Rights in similar terms to the above obligations in the form of a deed poll in favour of the Company, and will do all things reasonably necessary to ensure that such undertakings are and remain enforceable. 

6. Liability, taxation & insurance

6.1  Nothing expressed or implied in this Agreement confers any liability on either Party in respect of any loss, damage, cost or expense suffered or incurred by the other Party, to the extent to which this results from any act or omission by that party. 

6.2  As between the Parties, the Contractor is responsible and liable for paying all applicable taxes and other levies, including (without limitation) any income tax, superannuation, payroll tax and workers' compensation premiums in respect of the Contractor and the Personnel.

6.3  The  Contractor  must  effect  and  maintain  all  insurance  required  to  be effected and maintained by the Contractor by law and must provide suitable evidence to satisfy the Company in this respect upon request.  Without limit to the generality of this Agreement, if required, the Contractor must ensure that the Contractor  has all necessary insurance with  respect  to  the  Personnel  under  the  provisions  of  any  applicable  workers’ compensation  or  other  such  legislation  applicable  in  any  jurisdiction  in  which  the Services will be delivered.

6.4  The  Contractor  must  effect  and  maintain  professional  indemnity  insurance,  product liability insurance and other insurances as may be required by the Company, in respect of indemnity levels reasonably determined by the Company and in the amount of not less than $10,000,000 per occurrence. The Company may request evidence in writing that the Contractor holds those policies as required by the Company. 

6.5  If, and to the extent that, the Company is required by law to make payments in respect of  the  Contractor  or  any  of  the  Personnel,  in  connection  with  the following statutory purposes:

a.  payroll tax; 
b.  superannuation guarantee contributions; and 
c.  workers’ compensation premiums,  
these payments must be deducted from the Service Fee. 

6.6  The Contractor indemnifies and must keep indemnified the Company and its officers and employees: 

a.  from  and  against  all  costs,  losses  or  expenses,  penalties,  superannuation 
contributions  or  superannuation  guarantee  charges,  and  Taxes  that  the 
Company is required to pay (or considers it is appropriate to pay) as a result of or  in connection  with  a  finding  or  determination  that  this  Agreement  is  an 
employment  contract  or  that  the  Contractor  or  any  of  the  Personnel  is  an 
employee,  deemed  employee  or  deemed  worker  of  the  Company  for  any 
purpose; and 
b.  in respect of any amount of Tax or penalty which it may be deemed the Company is or was required to withhold from the Services Fee or which is imposed on the Company in respect of its failure to withhold.

7. Termination

7.1  This Agreement may be terminated at any time, for any reason, either:

a. by the Contractor or the Company giving two weeks’ written notice; or 
b. by agreement in writing. 

7.2  If the Contractor or the Company give notice of termination then the Company may, instead of requiring the Contractor to provide the Services for part, or all, of the notice  period, elect to make payment to the Contractor of an amount reflecting the fee which the Company would have paid to the Contractor if the Contractor had been required to continue to provide the Services for the relevant part, or all, of the notice period, in which case the Contractor’s engagement ends at the time elected. 

7.3  At  any  time,  this  Agreement  may  be  terminated  immediately  by  the  Company  (and without any period of notice) if:

a.  the Contractor or any of the Personnel engage in any conduct in relation to the 
Services  that  the  Company  considers  to  be  unlawful,  dishonest,  grossly negligent, or harmful to the Company’s interests or reputation; 
b.  the Contractor commits a serious or persistent breach of any of the Contractor’s 
obligations in this Agreement; 
c.  the Contractor is no longer willing or able to provide the Services; or 
d.  the Contractor ceases to hold a Licence if the Contractor is required to hold a 
Licence. 

7.4  Upon the termination of this Agreement for whatever reason:

a.  the termination will be without prejudice to the rights and remedies of any Party 
in respect of any breach of this Agreement by another Party, where that breach 
occurred before the termination of this Agreement; 
b.  the provisions of clauses 1.4, 4, 5 and 6, together with those other provisions of 
this Agreement which are incidental to, or required in order to give effect to, those 
clauses, will remain in full force and effect; 
c.  subject  to  the  Contractor  issuing  the  Company  an  Invoice  for  the  relevant 
amount, the Company will pay the Contractor the amount of the Service Fee 
which reasonably reflects the extent of the Services performed by the Contractor 
prior to termination and not already invoiced by the Contractor to the Company; 
d.  the Company may withhold from any monies that are due to the Contractor: 
      i.  where any property of the Company is not returned by the Contractor, an 
amount up to the replacement value of the property not returned; and/or 
      ii.  where the Contractor owes money to the Company, an amount up to the 
amount owed; and/or 
      iii.  where the Company suffers any loss or damage (including consequential 
loss  or  damage)  as  a  result  of  the  Contractor  failing  to  execute  the 
Contractor’s obligations under this Agreement in a reasonable and lawful manner, up to an amount equivalent to the loss or damage suffered; 
e.  the Company may set off any amounts the Company owes to the Contractor against  any  amounts  the  Contractor  owes  the  Company  at  the  date  of termination, to the extent permitted by law; 
f.  the  Contractor  must  return  all  of  the  Company’s  property  (including property 
leased by the Company) to the Company on termination, including all written or 
machine readable material, Confidential Information. 
g.  the Contractor must not record any Confidential Information in any form;   
h.  the Contractor must certify to the Company that the Contractor has complied with the Contractor’s obligations under this clause; and 
i.  the Contractor must do all things and execute all documents necessary to give 
effect to the above obligations. 

8. GST and Other Taxes

8.1  All amounts payable in this Agreement have been calculated without reference to GST (as  defined  in  the  A  New  Tax  System  (Goods  and  Service  Tax)  Act  1999 (Cth))  as amended,  varied  or  replaced  from  time  to  time  (GST  Act)  and  any subsequent  or replacement tax (GST).

8.2  If the Contractor is or will be required to pay GST in respect of any supply (as defined in the GST Act) to the Company under this Agreement:

a.  then the prices in respect of those supplies will be increased by an amount equal 
to the amount of GST the Contractor is or will be required to pay (ignoring any 
input tax credits) on demand; and 
b.  the Contractor will provide a tax invoice to the Company as required by law and 
details of the Contractor’s Australian Business Number (if any).

8.3  The Parties acknowledge that the Company may be required by law to withhold amounts from the Service Fee, for taxation purposes. 

9. Sub-contracting

9.1  The  Contractor  may  subcontract  the  provision  of  the  Services  (or  any  part of  the Services)  with  the  prior  written  approval  of  the  Company  and  upon such terms  and conditions as the Company considers appropriate.

9.2  In respect of a subcontractor approved in writing by the Company, the Contractor must ensure that:

a.  the subcontract facilitates compliance by the Contractor with the Contractor’s obligations under this Agreement; 
b.  the subcontract will not conflict with or detract from the rights and entitlements of the Company under this Agreement; 
c.  the  subcontractor  has  the  necessary  relevant  expertise  and  the  appropriate 
types and amounts of insurance to perform the work in relation to the Services; 
d.  the subcontract contains all the relevant terms of this Agreement including, but 
not  limited  to,  those  relating  to  subcontracting,  confidentiality,  intellectual 
property, and termination, including in particular that the Contractor has the right 
to terminate the subcontractor’s engagement or the subcontract on terms no less 
favourable than those accorded to the Company by clause 7 of this Agreement;  
e.  the subcontractor is prohibited from further subcontracting the Services without 
prior written approval of the Company.  

9.3  If  requested,  the  Contractor  will  promptly  provide  a  copy  of  the  subcontract  to  the Company. 

10. General

10.1  This  Agreement  records  the  entire  arrangement  between  the  Parties relating  to  all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.  

10.2  No waiver of any breach, or failure to enforce any provision, of this Agreement by any Party will limit or waive its right to subsequently enforce this Agreement.

10.3  This  Agreement  is  governed  by  the  laws  of  Victoria  and  the  Parties  submit  to  the exclusive jurisdiction of the courts of Victoria in respect of all matters relating to this Agreement.  

10.4  Any  amendment  to  this  Agreement  must  be  in  writing  and  signed  by  an  authorised representative of each Party. 

10.5  If any part or all of any provision of this Agreement is unenforceable, that part or provision will be severed, and the remaining provisions shall have full force and effect. 

10.6  This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one Agreement, with the Agreement to operate on and from the later date of signing by either Party.

11. Definitions

In this Agreement, unless the context requires otherwise: 

Party means a Party to this Agreement and Parties means all of the Parties to this 
Agreement. Personnel means the Contractor’s employees, officers and/or agents, or any of them, who perform any work in relation to the Services. 

Tax includes:
a.  any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called and whether Australian, foreign, state, municipal, provincial, county or local (including, without limitation, fringe benefits tax, payroll tax, group or Pay as You Go tax, prescribed payments system tax and reportable payments system tax), excluding GST (as defined in clause 8); and 
b.  any interest, penalty, charge, fine or fee or other amount of any kind assessed, 
charged or imposed on or in respect of the above.

Schedule 1

Item 2 - Service Fee

The Company will pay the Contractor the Service Fee as set out in the relevant Warranty Work Order with instalments to be paid within 30 days of receipt of the fortnightly Invoice.