Performance and payment

1.1 The customer appoints HIA to performed and deliver the Services in accordance with this agreement. The customer will pay HIA the price in accordance with this agreement.

1.2 HIA will use its reasonable endeavours to ensure that the services are performed and delivered with due care, skill and diligence in a professional and ethical manner.

Exclusions

1.3 The services to be performed and delivered by HIA and do not include the service exclusions.

Time for completion

1.4 HIA will use its reasonable efforts to perform and deliver the services by the completion date and any milestone dates (if any) specified in the schedule, subject to any delay resulting from a failure of the customer to provide information and material as required.

1.5 HIA is unable to commence the services until it receives from the customer:

1. the price paid in full (where the price is required to be paid in advance); and
2. all relevant information in relation as identified and required by HIA.

2.1 In addition to its payment obligations, the customer must, at its own expense:

1. be a member of the Housing Industry Association Ltd (HIA) in good standing
2. carry out the customer activities stated in the schedule;
3. actively participate in the Services;
4. If any services are carried out at the customer’s premises, provide HIA with sufficient and safe access, office space and facilities as reasonably required by HIA to perform the services;
5. provide HIA with complete and accurate information to facilitate HIA performing the services;
6. comply with all laws with are applicable to the customer performing its obligations under this agreement. The customer is solely responsible for ensuring that it uses any services in accordance with all applicable laws.

Payment of the price

3.1 The customer must pay HIA the price:

1. in the amounts, at the times, and subject to the conditions stated in the schedule; or 
2. if no time for payment is stated with the schedule within a period of 14 days after receiving a correctly rendered tax invoice.

3.2 The price is payable without set off, deferral or deduction.

3.3 Method of payment will be by electronic fund transfer (EFT).

HIA to provide invoice and information

3.4 HIA agrees to submit each claim for payment in the form of a valid tax invoice and in proper form.

GST

3.5 Any amount payable under this Agreement is calculated or expressed exclusive of GST. If GST is, or becomes payable, under this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the Supply. 

Incidental expenses and additional costs

3.6 HIA will reimbursed for those expenses stated in the Schedule that have been reasonably and properly incurred in connection with performing the Services. HIA agrees to maintain appropriate records and to submit copies of all receipts necessary to support such expenses. 

Late payment

3.7 If the Customer fails to pay a tax invoice when properly due and owing, HIA may, in addition to its other rights and remedies, charge default interest (accruing daily) on the overdue sum.

Suspension 

3.8 HIA may, without limiting its other rights and remedies, suspend all or part of performing carrying out the Services, if any amount owing by the Customer under this or any other agreement with HIA is 14 days or more overdue

4.1 A party must not disclose any confidential information without the prior written approval of the other party, except: 

1. to its professional advisers, bankers, financial advisers and financiers upon those persons undertaking to keep confidential any information so disclosed; or
2. to comply with any applicable law or the requirements of any regulatory body (including any relevant stock exchange).

4.2 HIA will collect, store and handle personal information about the customer in accordance with HIA’s privacy policy, the Privacy Act 1988 (Cth) and Australian Privacy Principles (APP). HIA’s privacy policy is available on HIA’s website at https://hia.com.au/privacy.

4.3 Personal information collected from the customer for the purposes for which it is being collected including: 

• to provide the services; 
• verify the identity of the customer; 
• analysis for evaluation purposes. 

4.4 Nothing in this agreement derogates from any obligation which either party has under the Privacy Act 1998 (Cth) concerning the protection of “personal information” as defined in that Act or any other Act, regulation or other legislative instrument requiring secrecy or confidentiality in dealing with information. 

5.1 HIA owns all the intellectual property rights in the services and all program content. 

5.2 Subject to payment of all fees, expenses and amounts owing to HIA, HIA grants the customer a limited, personal, non-exclusive licence to use the program content for the customer’s personal use only and for sole and exclusive purpose of completing the program. The customer must not supply the program content to any other person or use it for any commercial purpose.

6.1 Subject to clause 6.2 and to the maximum extent permitted by law:

1. the services are provided on an “as is”, “as available” basis and without any express or implied warranties of merchantability, fitness for a particular purpose, HIA makes no warranty, representation or prediction as to the outcome of the services. and, 
2. unless expressly stated to the contrary in this agreement, HIA exclude all representations, warranties or guarantees, whether express or implied, by statute, trade or otherwise, including without limitation that the services and materials are or will be complete or free from errors or that information will continue to be available to us to enable us to keep the services and materials up-to-date.

6.2 If the customer is a “consumer” for the purposes of the Australian Consumer Law, certain guarantees may be conferred on the customer and certain rights and remedies may be conferred on the customer which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, our liability to the customer is limited at HIA’s option to:

1. in the case of goods, replacement or repair of the goods or payment of the cost of replacing or repairing the goods; and
2. in the case of services, resupply of the services or payment of the cost of resupplying the services. In this clause, Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Indemnity

6.3 The customer (the Indemnifying Party) agrees to indemnify HIA (and its officers, employees and agents) (the Indemnified Party) from and against any: 

1. cost or liability incurred by the Indemnified Party; 
2. loss of or damage to property of the Indemnified Party; or 
3. loss or expense incurred by the Indemnified Party in dealing and/or in connection with any claim against the Indemnified Party, including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used or disbursements paid by the Indemnified Party, 
   arising from either:
1. a breach of this Agreement by the Indemnifying Party; or
2. an act or omission involving fault on the part of the Indemnifying Party in connection with its obligations under this Agreement.

6.4 The Indemnifying Party’s liability to indemnify the Indemnified Party under clause 6.2 is reduced proportionately to the extent that any act or omission involving fault on the part of the Indemnified Party contributed to the relevant cost, liability, loss, damage or expense.

7.1 HIA will effect and maintain the following insurances:

1. public liability in the amount of $20 million in any one claim;
2. professional indemnity in the amount of $1 million in any one claim;
3. worker’s compensation in accordance with statutory requirements

8.1 This agreement may be terminated by HIA if the customer ceases to be a member of HIA.

Immediate termination on insolvency or for substantial breach

8.2 Either party may by notice in writing terminate this agreement without prior notice if the other party is:

1. the subject of an insolvency event; or
2. in substantial breach of this agreement and that breach is not capable of remedy.

Notice of breach capable of remedy

8.3 Either party may give a written notice under this clause, if the other party is in breach of this agreement. A notice under this clause must state:

1. that it is a notice under Clause 8.2;
2. the breach relied on; and
3. that the party giving the notice requires the other Party to remedy the breach within 14 days of receiving the notice.

Termination for breach

8.4 If a party fails to give the other party clear evidence of remediation of a breach that is the subject of a notice under Clause 8.2, within 14 days of receiving that notice, then the party who gave that notice may terminate this agreement by giving further written notice to the other party. 

Obligations upon termination

8.5 In the event of expiry or termination of this Agreement:

1. HIA will cease providing the services; 
2. all money due to HIA by the customer must be paid in full; and
3. each party must return to the other party or, if requested by the other party, destroy all confidential information belonging to the other party.

9.1 HIA will not be liable to the customer or deemed as being in default under this agreement or lose any of its rights for any failure or delay in meeting any obligation caused by or arising out of an unforeseeable event.

9.2 HIA will be allowed additional time to carry out its obligations under this agreement equal to the period or periods (as the case may be) for which the unforeseeable event has delayed that party from carrying out its obligations.

9.3 Despite any other provision contained in this agreement, if HIA is unable to carry out its obligations under this agreement for a period of 60 consecutive days, either part may terminate this agreement.

Variations, waiver & amendment 

10.1 The services cannot not be varied unless the variation is agreed upon in writing by the parties.

10.2 A provision of, or a right under, this agreement cannot be:

1. waived except in writing signed by the party granting the waiver; or
2. amended except in writing signed by the parties.

Relationship of the parties

10.3 HIA provides the services as an independent contractor. No partnership, agency or trust is created between the parties, nor does the other party have the right, power or authority to bind the other party in any way, unless otherwise expressly agreed in writing in the agreement. 

Subcontracting

10.4 HIA may subcontract any part of its obligations under the agreement at its sole discretion. 

Non exclusive 

10.5 The customer acknowledges that HIA may carry out or perform similar services for any other party.

Costs

10.6 Each party must pay its own costs in connection with the preparation, negotiation, completion and execution of this agreement.

Notices

10.7 A notice or other communication connected with this agreement (notice) has no legal effect unless it is in writing. 

10.8 A notice may be given by an authorised representative of the sender. If two or more people comprise a Party, notice to one is effective notice to all.

10.9 In addition to any other method of service permitted by law, a notice may be given to a party personally, by leaving it at or sending it to the person's address last notified and by sending it by email to the person’s email address last notified.

10.10 A notice is deemed to be received by a party:

1. when left at the party's address; 
2. if sent by mail, three business days after posting;
3. if sent by email, at the time and on the day shown in the sender's transmission report, if it shows that the whole notice was sent to the party's facsimile number or email address last notified.
4. If the notice is deemed to be received on a day which is not a business day or after 5pm, it is deemed to be received at 9am on the next business day.

Jurisdiction

10.11 This agreement is governed by and will be construed in accordance with the laws of the Australian Capital Territory.

10.12 The parties irrevocably submit all their disputes arising out of or in connection with this agreement to the exclusive jurisdiction of the courts of the Australian Capital Territory.

Further assurance

10.13 Each party must:

1. do everything necessary or desirable to give full effect to this agreement; and 
2. not do anything which might prevent full effect being given to this agreement.

Entire agreement

10.14 This Agreement is the entire Agreement and understanding between the Parties on everything connected with the subject matter of this Agreement and supersedes any negotiations and communications, prior Agreements, arrangements and understandings on anything connected with that subject matter. 

Counterparts and electronic signatures 

10.15 This agreement may be executed in any number of counterparts and a counterpart may be exchanged by email (PDF). Together all counterparts make up one document.

10.16 This agreement may be (but is not obliged to be) formed, signed and stored electronically. 

Assignment

10.17 A party may only assign its rights or obligations under this agreement with the written consent of the other parties.

Severability

10.18 If all of any part of any provision of this agreement is invalid or unenforceable, then:

1. that provision is severed from this agreement to the extent necessary to remove the invalidity or illegality; and
2. the remaining provision of this agreement remains valid and enforceable.  

Survival

10.19 Each warranty and indemnity in this agreement is a continuing obligation, separate and independent from the other obligations for the parties and survives termination of this agreement.

10.20 The terms of this agreement which are capable of having effect after this agreement ends continue to have full effect, including without limitation clauses concerning the:

1. protection of confidential information;
2. intellectual property rights;
3. warranties and indemnities; and
4. limitations of liability.

10.21 It is not necessary for a party to incur expense or make payment before enforcing a term of this agreement or a right of warranty or indemnity conferred by this agreement.

11.1 In this agreement, unless the contrary intention appears:

1. a reference to this agreement or any instrument includes any variation or replacement of any of them;
2. a reference to a person includes a body corporate, joint venture, association, government body, firm and any other entity;
3. a reference to legislation includes any amendments to it, any legislation substituted for it, and any subordinate legislation made under it;
4. the singular includes the plural and vice versa;
5. words of one gender include any gender;
6. headings do not affect the interpretation of this agreement;
7. reference to a party includes that party’s personal representatives, successors and permitted assigns;
8. reference to a thing (including a right) includes a part of that thing;
9. if a party comprises two or more persons:
1. reference to a party means each of the persons individually and any two or more of them jointly;
2. a promise by that party binds each of them individually and all of them jointly;
3. a right given to that party is given to each of them individually; and
4. a representative, warranty or undertaking by that party is made by each of them individually.
10. a provision must not be construed against a party only because that party prepared it;
11. a provision must be read down to the extent necessary to be valid and if it cannot be read down to that extent, it must be severed;
12. all references to "days" in this agreement will mean calendar days unless business days are specified. Whenever any action must be taken under this agreement on or by a day that is not a business day, such action may be validly taken on or by the next day that is a business day, and in the case of payments (including refunds of payments), no interest will accrue on the amount due provided that such payment is made in full on the next day that is a business day; 
13. another grammatical form of a defined expression has a corresponding meaning;
14. the word “include” is used without any limitation;
15. the rights, duties and remedies in this agreement operate to the extent that they are not excluded by law; and
16. examples are descriptive only and not exhaustive.

12.1 Unless the context otherwise requires:

Agreement means the agreement between the parties evidenced in this document.

Business day means a day except a Saturday or Sunday or other public holiday.

Commencement date is the date stated in the schedule. 

Confidential information means any information:

1. about the terms of this agreement;
2. provided by HIA to the customer as part of the services, including all information, suggestions, advice or guidance:
3. which a party obtains under or arising out of this agreement of a confidential nature; and
4. which a party indicates, in writing, as being confidential in nature;
   but does not include:
5. information that is generally available in the public domain; or
6. information already known by the party prior to receiving the information.

Customer means the person or entity identified in the schedule.

Price means the amounts payable to HIA under this agreement for the services at stated in the schedule.

Default interest means the rate of 3% above the corporate overdraft reference rate offered by the Commonwealth Bank of Australia calculated on a daily basis from the due date for payment to the date on which the price, plus the accrued interest, on and until all such outstanding monies are paid.

Delivery date means the date for completion of the services stated in the schedule. 

GST, supply, supplier, recipient and ‘tax invoice’ have the meanings conferred by the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency event in relation to any party means, except in the ordinary course of business:

1. a liquidator, provisional liquidator, receiver, trustee in bankruptcy, or any form of external administrator is appointed in respect of the party;
2. the party proposes to its creditors a scheme of arrangement, deed of company arrangement or similar composition or arrangement involving any class of its creditors;
3. a controller is appointed over or takes possession of all or a substantial part of the party’s assets or undertakings;
4. the party is deemed insolvent under any relevant law;
5. if the party is a natural person – they die or become permanently mentally incapacitated or disabled;
6. any step is taken by the party to obtain protection from its creditors, under any applicable legislation; or
7. anything analogous or having a substantially similar effect to any of the events specified above happens in respect of a party under the law of any applicable jurisdiction.

Intellectual property means all existing or future species of industrial and intellectual property, whether registered or unregistered, registrable or not:

1. as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention; or
2. recognised by any statute or any principle of law or equity; or
3. including copyrights, patents, designs, trademarks, circuit layout rights, confidential information, trade secrets and the right to register all such intellectual or industrial property rights.

Intellectual property rights means all rights arising from any statute, or principle of law or equity concerning intellectual property. 

Party means a party to this agreement and parties mean all the persons or entities who execute this agreement.

Program means the Builder’s Registration Assistance Program provided by HIA to the customer as further described in the schedule.

Program content means all content and materials used in the delivery of the services including but not limited to handouts, guides, slides and other materials provided to the customer. 

Services means the services to be provided by HIA in relation to the program as described in the schedule.

Service exclusions means the services that are not covered under this agreement.

Substantial breach means a substantial breach of this agreement and includes but is not limited to any of the following:

1. a breach of this agreement which is incapable of remedy;
2. in the case of a customer, failure to pay HIA the price or an amount owing by clause 3; 
3. in the case of a customer failing to attend a 2 or more scheduled meetings without prior notice or valid reason; 
4. failure to comply with any obligations stated in Clause 4 (Confidential information and privacy) and Clause 5 (Intellectual property);
5. failure to indemnify as required under this agreement;
6. any act or omission of fraud, dishonestly, reckless or wilful misconduct or misrepresentation;
7. failure to comply with a further assurance obligation under Clause 10.13 (Further assurance); and 
8. an assignment of rights or obligations under this agreement without the written consent of the other party (Clause 10.17Assignment).

Term means the period specified in the schedule.

Timetable means the timetable for HIA to perform and complete the services as set out in the schedule.

Unforeseeable event means any event or cause beyond HIA’s reasonable control and includes, without limitation: 

1. strikes and/or lockouts; 
2. acts of God, war, fire, flood, terrorism, embargo or litigation;
3. acts of government or any agency instrumentality or any political subdivision thereof; or
4. other acts that occur without the fault or negligence of HIA.

Variation means a change to the services, including adding, omitting or changing the scope, character or quality of the services.