Agreement means the agreement between Statewide and the Client for the supply of Goods or Services constituted by an Order, these Conditions and any agreed variation.
Applicant means an employee or employees of Statewide to be mobilised to perform the Role.
Client means the individual or corporate body who has engaged the services of Statewide.
Conditions mean these terms and conditions in this Agreement.
Day means a calendar day.
Force Majeure shall mean all events not foreseen by Statewide or factors which are beyond the control of Statewide or Statewide’s influence and occur after the formation of the Agreement and / or during the Role or Order and / or after the Role or Order is completed including, but not limited to, natural catastrophes or disasters, weather events, blockades, industrial action of the Client, third party contractors of the Client, Client delays, war and other military conflicts, mobilisation, strikes and lockouts, natural fair wear and tear of Clients property.
Goods means the goods described in the Order either provided by Statewide or the Client as applicable.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and GST has the same meaning as it does in the GST Law.
Loss means any loss, liability, costs (including legal costs as the higher of an indemnity or solicitor-client basis) or expense incurred by Statewide relating to this Agreement.
Order means the Client’s order accompanying this Agreement or otherwise placed or communicated with Statewide and includes and incorporates these Conditions for the provision of Goods and / or Services.
Representative of a party means that party’s director, or authorised officer, employee or agent.
Role means the role that Statewide is required to perform for the Client as part of the Order.
Services means the services described in the Order to be provided to the Client.
Specifications means any technical or other specification relating to the Goods or Services referred to in the Order and details of which have been supplied by Statewide or its Representative to the Client.
Statewide means Statewide Industrial Maintenance Pty Ltd ACN 148 914 247.
- INTRODUCTION AND AGREEMENT FORMATION
2.1 These Conditions detail the terms and conditions and terms of engagement of Statewide and its involvement with the Client and shall apply to any Order placed by a Client with Statewide.
2.2 The entire Agreement between Statewide and the Client for the Role is:-
(a) these Conditions;
(b) any other agreement, terms or conditions, as well as any amendments, supplementary agreements or other agreements or conditions incorporated by reference to the Order or Specification as long as the Client or Statewide has stipulated before acceptance of the Order;
(c) any agreed variation; and
(d) any terms and conditions which are imposed by law and cannot be varied or excluded.
2.3 These conditions shall cover any Order placed by the Client. Statewide shall quote a Role with the Client and confirmation and acceptance by Statewide of the Role and placement of an Order by the Client with Statewide constitutes acceptance by the Client of these Conditions. Continued instructions and requests for Services by Statewide shall also be deemed acceptance of these Conditions by the Client.
2.4 Statewide reserves the right to review, renew, amend any of the provisions of these Conditions at any time and from time to time. The terms of such variation or amendment shall be effective from the time stipulated.
2.5 The Client may not rely on any representations by Statewide that are not included in these Conditions.
2.6 Statewide shall not be subject to any conflicting general terms and conditions of the Client or that the Client shall purport to apply or endorse against Statewide except to the extent that Statewide agrees in writing and signed by Statewide. Any such terms and conditions are hereby expressly rejected and at all time these Conditions shall prevail. Such terms of the Client shall not become part of these Conditions by way of the acceptance of a Role with the Client or by way of any other circumstances implying acceptance.
2.7 The scope of the Role to be provided by Statewide shall be determined exclusively by Statewide’s written quote and then confirmation and acceptance of the Role in writing as well as any written attachments thereto.
- SPECIFICATIONS OF ORDER AND ROLE
3.1 The Client must provide Statewide with detailed and accurate information in relation to the Client’s Role requirements under the Order.
3.2 The Client must provide specific details if an Applicant will be required to:-
- a) work more than 13 continuous shifts;
- b) have a rest of less than 10 hours in between shifts; or
- c) work in excess of 12 hours per day.
3.3 Statewide takes no responsibility if the specifications in an Order are wrong or inaccurate or the Client has supplied the wrong Goods and the Client will be liable in that event for the expenses incurred by Statewide for any work required to rectify the Order.
3.4 The Client is responsible for ensuring that Statewide is made aware of any special requirements pertaining to the Order and that Statewide relies upon the integrity of the information supplied to it. Failure to comply with this clause that cause Statewide any expense or cost shall be the sole responsibility of the Client.
3.5 Statewide may agree to provide, on request from the Client, additional Services not included or specifically excluded in the Role/Order. Statewide shall be entitled to make an additional charge in these circumstances. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits required by Statewide during or after provision of the Goods and/or or Services at the request of the Client and not included in the original Role and Order as part of this Agreement.
- PRICES PAYMENT AND INVOICING
4.1 Statewide reserves the right to charge different rates for different Applicants.
4.2 Statewide reserves the right to request and receive interim or progress payments or payments in advance based upon the Order.
4.3 Statewide charges are based on the hours worked by the Applicant whilst engaged by the Client.
4.4 Timesheets will be used as the record for hours worked. Timesheets will be completed by the Applicant and then signed by the Client by Tuesday afternoon every week during the Role.
4.5 The signature of the Client or Clients’ Representative on the presented timesheets is confirmation by the Client that the recorded hours are correct. Any timesheets not signed by the Client or Clients’ Representative within seven (7) days of being submitted by the Applicant will be deemed to be confirmed as correct.
4.6 Statewide payment claims will be based upon the timesheets provided, and will be billed at the hourly rate or daily rate specified in the schedule of rates provided with the Order application.
4.7 Invoices will be issued weekly. Invoices will be deemed to have been received by the Client on the following business day after being sent, unless the Client is able to prove otherwise. The Client must pay all invoices presented by Statewide within fourteen (14) days of the invoice being presented and without offset, counterclaim or deduction whatsoever.
4.8 Statewide reserves the right to amend its schedule of rates at any time applicable to the Applicant.
4.9 A minimum of four (4) hours will be billed to the Client for each Day that the Applicant is engaged by the Client for a Role. Hours worked in excess of four (4) hours in any Day cannot be offset against any Day when the Applicant is engaged for less than four (4) hours.
4.10 A minimum of five (5) hours will be billed to the Client for any unscheduled callout that the Applicant is engaged to do.
4.11 Statewide reserves the right to charge interest on any overdue accounts at the Reserve Bank of Australia cash rate plus 5% per annum calculated daily.
4.12 Statewide reserves the right to withdraw the Applicant, its Good or Services or terminate this Agreement if the Client fails to make payment in accordance with this Agreement including interim payments during the Role.
4.13 Statewide reserves the right to pass on any Loss to the Client including costs, expenses, or payments relating to the recovery of overdue monies from the Client.
4.14 Statewide may agree to provide, on request from the Client, additional Services not included or specifically excluded in the quote, Role or Order. Statewide shall be entitled to make an additional charge in these circumstances. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits by Statewide or an Applicant after the completion of the Order by Statewide or the Applicant.
4.15 During a Role, Statewide shall be responsible for the following:
(a) all payments due to the Applicant or any sub-contractor in accordance with the terms of individual agreements or contracts which apply solely to Statewide;
(b) the deduction and or remittance of taxes including but not limited to: income taxes, fringe benefits, tax and payroll tax as required by law;
(c) the payment of Superannuation as required by law to the Applicant.
- WORKING CONDITIONS
5.1 Regarding the working conditions/working environment the Client agrees to provide the following:-
(a) compliance with relevant legislation including without limitation:
(i) Occupational health and safety;
(iii) Harassment; and
(iv) Relevant provisions in the Fair Work Act, including in relation to bullying;
(b) implementation of safe working practices standard and a safe system of work procedures;
(c) regular maintenance of equipment or plant of the Client’s to be used by the Applicant during the Role; and
(d) safety management plans in relation to the Role and any other work performed by the Applicant.
5.2 Statewide and the Applicant reserve the right to stop performance of the Role or any part thereof while the Client is in breach of this clause of these Conditions and Statewide shall not be liable to the Client for any claim, suit, error, cost, interest, loss, expense, damage, law suit, cause of action, delay or injury whatsoever or however caused as a result of Statewide’s and the Applicant’s rights under this clause.
- MANAGEMENT OF APPLICANT
6.1 The Client is to:-
(a) supervise, instruct and direct the Applicant whilst the Applicant is engaged by the Client and on the Client’s premises;
(b) provide adequate notice to both Statewide and the Applicant of any change to the working environment or conditions or the Role.
6.2 Statewide reserve the right to control the employment of the Applicant and which Applicants perform the Role or Order for the Client in its absolute and sole discretion and this includes the right to terminate the Applicant’s employment.
6.3 The Client must not re-hire or supply the Applicant to any third party and the Applicant shall only be there to perform the Role for the Client.
6.4 In the event in that the Client revises the Role in a manner which affects an Applicant’s duties or responsibilities, the Client is required to give sufficient notice to Statewide to allow Statewide to consider the Applicant’s suitability for the revised Role.
6.5 Statewide will determine whether the Applicant has sufficient experience, qualifications or training for the revised Role and may, in its absolute discretion, nominate a different Applicant for the revised Role if it considers it necessary to do so.
6.6 If Statewide provides a different Applicant for the revised Role the Client shall bear any additional expenses incurred due to the change in Role.
6.7 If for any reason the Client is not satisfied with an Applicant the Client:-
(a) must contact Statewide about a replacement; and
(b) must not communicate anything to the Applicant indicating that the Role for them has ceased.
6.8 Statewide reserves the right to allow it or an Applicant to refuse to work, if in the reasonable opinion of Statewide or the Applicant, the working environment is deemed unsafe, including for (without limitation) the following reasons:-
(a) safe working procedures are not established or being followed;
(b) statutory or regulatory safety standards not being complied with;
(c) the requests of the Client are unreasonable; or
(d) plant or equipment is not being maintained to ensure safety.
7.1 Statewide shall hold and keep in force such insurance policies over the Applicant as Statewide deems necessary to provide protection for the Applicant for standard business risks associated with the business of Statewide. Statewide shall take on such additional insurance policies at the reasonable request of the Client if required by the Client to work at the Client’s premises.
7.2 The Client shall maintain at least the same insurances as required of it by Statewide and any further insurance applicable to their specific operation in addition to and for the protection of the Applicant whilst on its site.
8.1 Statewide reserves the right in its sole and absolute discretion and without the consent of the Client to sub-contract any part or all of the Role or Order at any time and from time to time during the Role to meet the requirements of the Client’s Order.
8.2 Statewide reserves the right to manage the contract with any sub-contractor in its sole and absolute discretion and this includes the right to terminate the contract with the sub-contractor without interference from the Client.
8.3 Statewide shall not be liable for the performance of or performance by any sub-contractor in relation to a Role performed by that sub-contractor.
- FORCE MAJEURE
9.1 During performance of the Role if any Force Majeure event causes substantial difficulties in the performance of the Role or Order or temporarily prevents or renders impossible the due performance of the Role or Order, Statewide shall not be liable to the Client but reserve the right to charge the Client for any delay caused by, or rectifying or addressing any Force Majeure event to the Client.
9.2 Insofar as Statewide or the Applicant are prevented from performing the Role by reasons of Force Majeure, such prevention shall not be deemed to be a breach of any contract in performing the Order and any contractual deadlines shall be extended accordingly for a reasonable period.
9.3 The same shall apply insofar as any performance by Statewide is affected by a contracted third party or that contracted third party is delayed in relation to Statewide due to a Force Majeure event.
- CLIENT COOPERATION
The Client will:
10.1 Provide notification to Statewide immediately of a claim under any insurance policy or statutory authority or self- insurance policy in relation to the Applicant where the policy is held by the Client.
10.2 Provide written feedback in relation to any performance issues with an Applicant which feedback Statewide can provide to the Applicant.
10.3 Maintain confidentiality and privacy of information regarding all Applicants and Statewide.
10.4 No payment is to be made directly to any Applicant directly whilst they are assigned on an assignment or following completion of an assignment.
10.5 If the Role or any part thereof is to be performed on Statewide’s premises, the Client must comply with all applicable environment, occupational health and safety laws and Statewide’s then current safety and other applicable policies.
10.6 The Client shall provide Statewide with a complete list of all chemicals, hazardous materials, and ingredients in the composition of goods used in the performance of the Role and a copy of the material safety data sheet for such chemicals and hazardous materials. The submission of such list by the Client shall not relieve the Client of exclusive responsibility for the safe transportation, use, storage and disposal of such materials prior to acceptance by Statewide. All chemicals and hazardous materials brought by the Client to Statewide’s premises shall bear a label stating the identity of the chemical of material and the hazards associated therewith.
10.7 The Client shall cooperate at its expense with Statewide and the Applicant in the provision and accommodating requests in order to meet the performance requirements of the Order and for prompt performance as is necessary.
10.8 Insofar as any performance of the Role is to be provided at the premises of the Client, the Client shall undertake all special measures necessary for the protection of the Applicant and property of Statewide at the place of the provision of the Role or Services and the performance of an Order.
10.9 If necessary, the Client shall provide special protective clothing at no charge to Statewide or the Applicant.
10.10 The Client may direct and shall instruct the Applicant to any applicable special safety regulations insofar as such are of significance for the Applicant and for the performance of the Role. In the event of any breach of such regulations by an Applicant, the Client shall notify Statewide without undue delay.
10.11 If any performance is not possible because of non-compliance with safety regulations and a resulting threat to the safety of an Applicant, either appropriate counter-measures are to be undertaken or the respective performance shall be suspended until such time as an appropriate level of safety can be ensured at the sole cost and expense of the Client.
10.12 In the event that the Client is responsible for ensuring the required safety at the place of work, such suspension shall result in an extension of any affected deadlines but Statewide reserves it rights to charge the Client for such delay.
10.13 Statewide reserve the right to charge additional fees or claim reasonable compensation in terms of resulting from any failure of the Client to cooperate. Any additional rights of Statewide shall not be affected.
10.14 Unless otherwise agreed to the contrary, the Client shall cooperate with Statewide at its own expense and the Client shall provide technical support to the necessary extent.
10.15 The Client shall be liable for the correctness of any information, documentation etc. supplied to Statewide under the Order or whilst during the Role on the Clients premises, and also in terms of any third party rights related thereto.
- Both Statewide and the Client undertake to keep confidential all information received from the other party including without limitation Statewide’s pricing of Applicants and quotes for a Role. This shall apply also after the ending of or completion of the Order. This obligation shall not apply to information already known to the receiving party by legitimate means at the time of receipt without any duty of confidentiality, or to any information which the receiving party later becomes aware of by legitimate means without any duty of confidentiality or, to any information which – without a breach of contract by any of the parties – is or becomes generally known.
- Each party shall retain its title of ownership and any rights to documentation and data carriers made available by that party. Any copying or passing on of such documentation or data carriers is permitted only with the approval of the party providing such.
- PERFORMANCE OF ROLE AND ORDER AND ACCEPTANCE BY CLIENT
12.1 In the carrying out of any performance of a work Statewide will at all times use its reasonable endeavours to perform the Role and Order to the relevant standards applicable to the Role.
12.2 Statewide shall comply with all reasonable directions of the Client as to the nature and scope of the Services provided for the performance of the Role and Order.
12.3 Nothing in this Agreement shall effect Statewide’s rights or any Applicant’s rights to exercise its own judgment and to utilise its skills as it considers most appropriate in order to refuse to comply with a Client’s request or to achieve compliance with any regulations or statutes or directions or otherwise in providing the Good or Services under this Agreement.
12.4 Statewide reserves its right to:-
(a) decline requests for any Services requested by the Client;
(b) decline to perform unsafe variations to a Role or Order at the direction or request of the Client and such refusal shall not be a repudiation of this Agreement; or
(c) Cancel, withhold or postpone appointments or work at their discretion particularly if a Client is in default or breach of any of the provisions of this Agreement.
12.5 Statewide make no representation that a specific result is agreed or achievable. Unless expressly agreed otherwise, Statewide shall not accept any responsibility for the achieving of particular results or for a specific type of success in relation to the provision of any performance of a Role.
12.6 Any deadline for the completion of a Role shall only be binding if such a binding nature is expressly agreed in writing by Statewide. In any case deadlines shall be subject to mutual clarification of all matters related to the performance of a Role and Order as well as a requirement of prompt cooperation as well as technical support on the part of the Client.
12.7 In the event of any unforeseen or unavoidable events in the provision of the performance as well as in the event of any hindrances, such as Force Majeure, labour disputes or any other disruptions in our own operations or in the operations of our suppliers as well as in case of any delayed delivery or delayed performance by Statewide’s subcontractors, Statewide shall be entitled to extend any performance deadline by a period corresponding with such hindrance. The Client shall be notified as soon as possible as to the commencement and end of such circumstances.
12.8 Performance shall be provided in terms of our existing technical and operational capabilities.
12.9 In cases where Statewide’s performance is subject to acceptance procedures, the Client shall accept any performance of a Role or an Order or part performance of an Order or Role without undue delay and as soon as practicable after being advised by Statewide and the Client shall declare such acceptance or part acceptance insofar as there are no defects which substantially detract from suitability or functioning.
12.10 If after making available for acceptance or part acceptance by the Client of the performance, or the part performance of the Role or an Order, the Client gives the approval, acceptance (or part acceptance) whether orally or in writing to Statewide no such further liability shall attach to Statewide in relation to the Role or Order (or part thereof).
12.11 If the performance of a Role or Order is defective Statewide may initially investigate within three (3) Days of being notified to determine the cause of the defect and whether the defect is as a result of Statewide’s performance of the Role and whether the defect should be rectified.
12.12 If the defect is found not to have been a Statewide caused defect, then Statewide shall be entitled to charge the Client its unscheduled call out fee and its usual schedule of rates.
12.13 Statewide shall if the defect is found to have been a Statewide caused defect rectify the defect at Statewide’s cost.
12.14 Statewide takes no responsibility and will not be liable for any loss, expense or costs resulting in the Goods being faulty where they were provided by the Client or a third party or the Goods are inadequate as a consequence of insufficient information provided by the Client or for Goods provided by or on behalf of the Client.
12.15 Statewide takes no responsibility for representations made by any third party in relation to any Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer.
12.16 The Client further acknowledges that Statewide shall not be liable for and the Client releases Statewide from:-
(a) Any claims in respect of faulty or defective design of any Goods supplied whether by Statewide or by a third party;
(b) Any loss, cost or expense incurred by the Client as a result of delay, or failure to provide the Goods whether by the Client or otherwise; or
(c) Any loss cost or expense incurred by the Client by the Clients failure to observe any of these conditions, or due to an event of Force Majeure, or any further cause or circumstance beyond Statewide’s reasonable control.
12.17 Statewide does not represent that it will provide and/or deliver any Goods unless it is included in the Order.
12.18 The Client accepts risk in relation to the Goods when the Goods pass to its care, delivery and/or control whether by Statewide or a third party.
12.19 The Client acknowledges that the Client may forfeit any rights, if any, he may have against Statewide if:
(a) The Goods are applied for any other use to which the Goods are not intended for and/or not in accordance with any applicable manual. Statewide reserves it rights not to apply the Goods for a purpose which in Statewide’s sole discretion or opinion is contrary to their intended use irrespective of the request of the Client;
(b) Any alteration to the Goods is carried out other than in accordance with intended alterations and/or the Goods are not repaired by an authorised and trained person.
12.20 The Client further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way and shall indemnify in full Statewide and/or Applicants in relation to all such claims.
13.1 The Client is to indemnify Statewide to the full extent of Statewide’s liability for any and all damages, expenses, costs, Loss, compensation, claims, liability, suit, cause of action, interest and costs that Statewide may incur or have to pay to any person or party as a result of any damage, loss or injury caused or contributed to either directly or indirectly due to:
(a) A breach by the Client of any of their obligations under these Conditions or the Agreement;
(b) A breach by the Client of health and safety laws or any other applicable law, regulation, procedure or policy;
(c) An act, error or omission of the Client or any of the employees, agents, contractors, sub-contractors or otherwise acting upon direction or authority of the Client save and except for Statewide.
13.2 The Client is to release Statewide from all claims both present and future relating to the liability for any damage, injury, loss or death of our workers, to the extent that our liability is not required by law to be covered by insurance or other suitable statutory indemnity or self-insurance arrangement or such circumstance should have been covered by an insurance policy of the Client.
- LIMITATION OF LIABILITY
14.1 Statewide shall not be liable to the Client in relation to any infringement of third party industrial property rights and Statewide’s liability shall be limited only to those industrial property rights of which Statewide are made aware of.
14.2 Statewide’s liability shall not extend to any rights which Statewide are not aware of or ought to have been aware of due to a failure to examine the situation concerning industrial property rights to the customary extent undertaken in the industry in relation to a Role.
14.3 Statewide shall not be liable for:-
(a) any combining of the performance of a Role with other service providers or third parties acting in conjunction with Statewide or services beyond the control of Statewide or products or Goods as well as any infringement of property rights which would not have occurred without such a combining by the Client;
(b) changes or modifications to Statewide’s performance of a Role by the Client or any third party;
(c) direction of the Client or the services or performance of any third party;
(d) fair wear and tear occurring to Goods or plant and equipment serviced as part of the Role or any defect caused by a Force Majeure event or event beyond the scope of the Role or control of Statewide;
(e) any Force Majeure event; or
(f) any loss or expense, delay or damage incurred by the Client as a result of Statewide enforcing any of or acting upon any of Statewide’s rights under this Agreement;
(g) infringement of industrial property rights which result from any unforeseeable use or operation of our performance of a work.
14.4 In the case of any Force Majeure event causes substantial difficulties in the performance of the Role or Order or temporarily prevents or renders impossible the due performance of the Order Statewide shall not be liable for any cost, damage, expense or delay incurred by the Client.
14.5 While Statewide will take reasonable steps to ensure correspondence sent by the Client shall remain confidential, Statewide shall not be liable for a third party viewing such correspondence.
14.6 Statewide shall not at any stage ever be liable for work performed by sub-contractors engaged by Statewide.
14.7 In any event should Statewide be liable to the Client and notwithstanding anything to the contrary in these Conditions or any attempted imposed or implied conditions purported to be imported by the Client, Statewide’s total aggregate liability for any and all claims whatsoever, costs or expenses, penalties or damages whatsoever or howsoever arising is the total paid to Statewide under the Order.
14.8 In no event shall Statewide be liable for any special, indirect, punitive, collateral, exemplary, incidental, loss profits, loss of revenue, economic losses or consequential damages or losses of any kind, regardless of whether arising from these Conditions or a breach of a contract, warranty or otherwise by Statewide.
15.1 Statewide can terminate a Role or Order (and this Agreement) without notice and without liability to the Client for reasons and if required or applicable before the end or completion of the Order including but not limited to the following:
(a) the Client’s failure to pay any outstanding amount owed to Statewide under this Agreement; or
(b) Any breach of the conditions of these Conditions or this Agreement by the Client.
15.2 In the event of this Agreement being terminated by Statewide, the Client will still be liable to pay Statewide any amounts owed up to and including the date of the termination.
15.3 Statewide shall not be liable to the Client for not finishing the Order and termination by Statewide shall not constitute a repudiation of the Agreement or grant the Client any rights of remedy or recourse for costs, delays or expense incurred by the Client after the date of termination, whether against Statewide or in having the Role and Order completed and Statewide shall not be liable for specific performance of or completion of the Order in these circumstances.
15.4 If the Client terminates the Agreement for any reason before the end of a Role or Order is completed, the Client agrees that they shall indemnify Statewide for any liability, damages, compensation, expenses or costs that may be incurred as a result of the Role or Order up to the date of termination and after and the Client shall still be liable to pay in addition to the amounts owed liquidated damages up to the originally quoted Order cost.
This agreement and any subsequent provision of services is to be governed by the Law of the state of Western Australia.
- Entire Agreement and Variation
17.1 These Conditions and the Order constitutes the entire Agreement between Statewide and the Client and replaces all previous contracts, representations and agreements.
17.2 Any variation to these Conditions and the Agreement is to be made in writing and agreed by Statewide and the Client.
17.3 Each and any provision of this Agreement is severable. Severance of a provision or part of this Agreement does not affect any provisions other than those which are severed.
18.1 The failure of Statewide at any time to require performance by the Client of any provision of this Agreement does not affect Statewide’s right to require the Client’s performance at any time.
18.2 The granting of time does not constitute a waiver by Statewide and a waiver in any event shall only operate to the extent in which it is expressly agreed in writing to be waived by Statewide.
All invoices issued pursuant to the Agreement will be subject to GST as required by GST law.