1. ACCEPTANCE AND DATA USE
1.1. By using the HIA TRADEPASS Web Application You consent to a legally binding Agreement with HIA which is subject to these Terms and Conditions, as amended from time to time by HIA in accordance with clause 1.7.
1.2. Where You are acting in relation to this application as agent or authorised officer on behalf of a body corporate, You confirm and warrant that You are doing so with the knowledge and authority of, and capacity to bind that body corporate, and agree that the obligation undertaken by You under these Terms and Conditions will be binding on the body corporate.
1.5. You are responsible for maintaining the confidentiality of the Information required for Your access to the HIA TRADEPASS WEB APPLICATION and the HIA TRADEPASS Contractor Business Portal, (Your Login Information) and for restricting access by third parties to the application in Your name. You accept all liability if Your Login Information is used by an unauthorised person.
1.6. If You believe that Your Login Information has been compromised, lost or misplaced, You must contact HIA immediately by email at firstname.lastname@example.org
. While HIA will endeavour to promptly notify You of any changes, it is Your responsibility to check the website regularly for updated versions of the Terms and Conditions.
2.1. This Agreement will commence on the date of Your registration with HIA to use the HIA TRADEPASS web Application and will continue for an initial period of twelve months from that date (the Initial Term).
2.2. At the end of the initial Term, then provided You continue to comply with this Agreement, and unless otherwise informed by HIA, the Term will be automatically renewed for a further 12 months.
2.3. Neither Party may assign its rights under this agreement without the written consent of the other Party.
3. CONTRACTOR’S OBLIGATIONS
3.1. You must at all times -
a) provide HIA with all necessary information about the work which You are skilled and qualified to perform;
b) ensure that all licences, authorisations and approvals necessary to carry out Your obligations under this Agreement are current and such licences, authorisations and approvals are available for inspection by HIA at all times;
c) ensure that all of Your employees and subcontractors also hold all necessary licences, authorisations and approvals to perform work for You;
d) Comply with all relevant legal requirements applying to your business;
e) be able to pay your debts as they fall due;
f) provide HIA with all necessary information relevant to HIA’s TRADEPASS Business Standards for Contractors, including any information which is reasonably requested by HIA;
g) ensure that all information provided is true and correct at the time it is provided, and that HIA is promptly informed of any changes to this information;
h) once Accredited, include in all of Your advertising and promotional material that You are an HIA TRADEPASS Contractor;
i) diligently perform Your obligations and functions under this Agreement and ensure all costs and expenses in connection with doing so are met;
j) provide Your products and services with competence, fairness, value, honesty and integrity;
k) ensure that all products and services You provide are delivered as advertised, and that all claims made are genuine;
l) ensure that standards of workmanship are provided as promised to the customer, in accordance with appropriate industry practice for the class of work concerned, and in a manner which shall enhance the reputation of the industry;
m) not engage in false, misleading or deceptive conduct or otherwise contravene any law in connection with the performance of Your obligations under this Agreement;
n) use Your best endeavours to ensure similar compliance with the HIA Business Standards for Contractors by all Your partners, associates, employees and contractors;
o) act ethically and not do anything which will or is likely to damage, ridicule, bring into disrepute or otherwise be detrimental to HIA and its members;
p) be just and faithful in Your activities and dealings with HIA;
q) disclose to HIA any duty You owe to others and any other matter that may give rise to a conflict of interest in the performance of Your obligations under this Agreement; and
r) pay HIA any required fees, as agreed with HIA from time to time.
3.2. You agree that You do not require HIA to warrant, and that do not rely on HIA to ensure, that You are in compliance with any particular legal requirement at any particular time, or that Your workmanship, contract administration, safety compliance or workplace behaviour will be of any particular standard.
3.3. You must not -
(a) hold Yourself out as having any authority to bind the HIA, nor allege that any employment relationship or partnership arises between the HIA and Yourself from this agreement;
(b) represent that You are employed or hold office with the HIA group or are in any way connected with or have an interest in the business of the HIA group;
(c) use any HIA Trade Mark or other HIA intellectual property without written permission of HIA;
(d) upload, link to, or otherwise distribute via the HIA TRADEPASS Contractor Business Portal, any information, material or item which contains a virus, trojan horse, worm, malicious code or other harmful or disruptive software, or which is otherwise a contravention of any Australian law, or which infringes the private legal rights of others, including without limitation rights to privacy.
3.4. You acknowledge that HIA has important reputation issues to protect arising out of it endorsing and associating itself with You and You agree to take such steps as are reasonably requested by HIA to protect HIA’s reputation in respect of matters that may arise out of the business of HIA TRADEPASS.
3.5. You acknowledge that You use HIATRADEPASS Contractor Business Portal at Your own risk and You are solely responsible for any choices You make based on the information provided by HIA.
4. HIA’S OBLIGATIONS
4.1. HIA will -
a) Accredit building trade Contractors who meet HIA TRADEPASS Business Standards for Contractors in relation to the areas for which they have sought Accreditation;
b) review and verify the current and ongoing compliance requirements and the status of Contractors to ensure, as far as possible, that HIA TRADEPASS Contractors are and remain compliant with obligations relevant to their work as building trade Contractors;
c) where You do not currently meet HIA TRADEPASS Business Standards for Contractors, assist You to meet those standards and become Accredited;
d) provide You with regular updates on the latest compliance issues.
e) from time to time perform spot quality checks on You to ensure that You remain compliant with the HIA TRADEPASS Business Standards for Contractors;
f) provide HIA Principal Contractors who are seeking to engage HIA TRADEPASS Contractors with Your contact;
g) provide support through advertising for the concept of a HIA TRADEPASS Contractor as a desirable business status;
h) grant You, while Accredited, a licence to describe Yourself as an HIA TradePass Contractor and to use HIA TRADEPASS copyrighted material.
i) Provide You access to the HIA TRADEPASS Web Applications including HIA TRADEPASS Contractor Business Portal, enabling You to review Your current Accreditation status.;
4.2. While HIA will take reasonable care to ensure that an Contractor covered by this Agreement is Compliant with the HIA TRADEPASS Business Standards for Contractors, HIA cannot and does not warrant that this will be true of all Contractors at all times.
4.3. HIA does not represent, and You agree You do not require HIA to warrant, that Accreditation as an HIA TRADEPASS Contractor is a guarantee of compliance with any particular standard of contract administration, safety compliance, workplace behaviour workmanship, skill or quality, or suitability for performance of any particular job or type of work, or all legal obligations by any contractor.
4.4. HIA may vary, upgrade or remove some or all of the features of the HIA TRADEPASS Web Application or HIA TRADEPASS Contractor Business Portal at its absolute discretion at any time without notice to You, to meet legal, commercial or operational requirements. Your continuing to use the HIA TRADEPASS Web Application or the HIA TRADEPASS Contractor Business Portal is deemed to be advice to HIA that You agree to continue this Agreement subject to such changes. While HIA will endeavour to promptly notify You of any changes, it is Your responsibility to check the website regularly for any change.
5. FORCE MAJEURE AND OTHER EVENTS
5.1. Neither Party is responsible for any failure to perform its obligations under this agreement, if it is prevented or delayed in performing those obligations by an event or circumstance which is beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent (‘force majeure’).
5.2. The Party prevented from or delayed in performing its obligations under this contract must notify the other Party as soon as possible giving full particulars of the event and the reasons for the event preventing that Party from, or delaying that Party in performing its obligations under this contract. That Party must use its reasonable efforts to mitigate the effect of the event upon its or their performance of the contract and to fulfil its or their obligations under the contract.
5.3. In addition to the operation of Clauses 3.5 and 5.1, HIA will not be responsible for any loss or damage sustained in connection with the use by You of the HIA TRADEPASS Contractor Business Portal and arising from the following, however occurring -
a) Loss of continuous access to the HIA TRADEPASS Contractor Business Portal or www.hia.com.au
due to internet, computer or server downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption to telecommunications;
b) Failure or loss of confidentiality of delivery of communications over the Internet;
c) Effects of computer viruses, trojan horses or other malicious computer software;
d) loss or corruption of data (including Your information); or
e) damage to any computer system.
6. YOUR ACCESS TO INFORMATION
6.1. HIA will provide You with access to information on the HIA TRADEPASS Web Application and HIA TRADEPASS Contractor Business Portal on the following basis –
a) Where partially funded by a Principal Contractor or fully funded by You, Your Contractor Business will be fully visible, searchable and available for contacting by all Principal Contractors;
b) Where fully funded by a Principal Contractor, Your Contractor Business will not be visible to or searchable by others, however
(i). Your Contractor Business will be able to be made searchable by other Principal Contractors on their request to HIA and payment by them of the appropriate fee; and
(ii). HIA may, at its absolute discretion, remove any search restrictions if You so request.
c) Where Your Contractor Business is already searchable, and subsequently a Principal Contractor wishes to fully fund Your Contractor Business to enable search restrictions, this will not be permitted by HIA;
6.2. The Parties agree that HIA may also, at its discretion, from time to time provide You with other information and offers which are relevant to your business, unless You advise HIA in writing to the contrary.
7.1. Each Party must maintain confidentiality in relation to the other Party’s corporate information and the performance of this Agreement.
7.2. Each Party must–
a) not disclose any corporate information of the other Party to any person at any time, other than is required by law and then only to the extent and in the way so required;
b) use its best endeavours to prevent a third Party disclosing or using corporate information at any time;
c) not use any corporate information to gain advantage for itself or anyone else and take all practicable steps to avoid detriment to the other party or a party related to the other party (which includes, in relation to HIA, the HIA Group).
7.3. The Parties agree that:
a) any breach or threatened breach of this Clause may cause immediate and irreparable harm for which damages alone may not be an adequate remedy;
b) HIA may commence proceedings to restrain any such breach or threatened and any other unauthorised access to, or use of, any corporate information or to compel specific performance of this agreement.
7.4. Each Party unconditionally indemnifies the other against loss or damage arising out of or as a consequence of a breach of this Clause.
8. ACCESS TO CONTRACTOR’S PREMISES AND INFORMATION
8.1. You must, at all reasonable times and upon reasonable notice, permit the HIA access to Your business premises and worksites in order for the HIA to inspect, assess and review Your compliance under this agreement.
8.2. As soon as practicable after becoming aware that information, documents and other particulars made available to HIA by it are or have become untrue, inadequate, or contain errors or ambiguities, You must give written notice to the HIA detailing the true facts, errors or ambiguities
9. PROPERTY DAMAGE AND PUBLIC RISK
9.1. You agree to indemnify HIA against loss of or damage to HIA’s property, and claims in respect of death or personal injury or loss of or damage to any other property, arising out of or as a consequence of the carrying out of this agreement. The indemnity will be reduced proportionally to the extent that an act or omission of the HIA contributed to the death, injury, loss or damage.
10.1. Unless otherwise indicated, all consideration for any supply made under this agreement is exclusive of any GST imposed on the supply.
10.2. If one Party (supplier) makes a taxable supply to the other Party (recipient) under this agreement, the recipient on receipt of a tax invoice from the supplier must pay without set-off an additional amount to the supplier equal to the GST imposed on the supply in question.
10.3. No Party may claim from the other Party any amount for which the first Party may claim an input tax credit.
10.4. The expression “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999.
11.1. You must insure against liability for death of or injury to persons employed, or, where required by law, contracted by You, including liability by statute and at common law. The insurance cover must be maintained until completion of the carrying out of this Agreement.
11.2. You must ensure that all subcontractors have similarly insured their employees.
PROOF OF INSURANCES
11.3. Wherever requested by HIA, You must provide proof of all insurance policies required to be maintained or ensured by You under this Agreement.
12.1. After the initial Term, either Party may at any time voluntarily terminate this agreement by giving 28 days prior written notice to the other Party.
12.2. If this agreement is so terminated You remain liable to pay HIA any amounts which fall due up to the date the agreement is terminated.
12.3. A Party’s right to terminate pursuant to this Clause is additional to any of the Party’s other rights and remedies stated elsewhere in this agreement or at common law and may be exercised notwithstanding that there has been no breach of this agreement.
12.4. Termination under Clause 12.1does not release the Party from liability in respect of any breach or obligation under this agreement.
TERMINATION FOR DEFAULT
12.5. If a Party is in substantial breach of this agreement then the other Party may give the Party in breach a written notice to show cause why the other Party should not be entitled to terminate this agreement.
12.6. The written notice is to state the alleged substantial breach and, if the breach is capable of being remedied, that the breach must be remedied within 5 days of receiving the notice.
12.7. If the breach is not capable of being remedied, or the Party in breach has not remedied the breach as required in the notice, then the other Party may by written notice, terminate this agreement.
12.8. Upon such termination the rights and liabilities of the parties shall be the same as they would have been had the Party in breach repudiated this agreement and the other Party elected to treat this agreement as at an end and recover damages.
TERMINATION FOR INSOLVENCY
12.9. If a Party is insolvent then the other Party may terminate this agreement by giving a written notice of termination to the insolvent Party.
12.10. A Party is deemed insolvent if it:
a) informs the other Party in writing or creditors generally that it is unable to perform its obligations under this Agreement;
b) is or becomes bankrupt;
c) enters into a scheme or arrangement with its creditors; or
d) has a winding up order made or a resolution passed for its winding up.
13.1 Each Party agrees to :
a) Use reasonable endeavours to resolve any dispute that arises in relation to this Agreement by mediation before bringing a legal claim or starting legal proceedings against the other; and
b) Comply with the Australian Commercial Disputes Centre Guidelines in relation to any mediation that may occur.
14. MUTUAL WARRANTIES
14.1. Each Party, if a body corporate, warrants that :
a) it is duly incorporated and has the power to own its own property and to carry on its business;
b) the execution, delivery and performance of this Agreement does not violate its Constitution nor any existing law or regulation nor any agreement or document to which it is a Party or which is binding upon it or any of its assets;
c) it has the power, and has taken all corporate and other action required, to enter into and to authorise the execution, delivery and performance of this Agreement;
d) it has filed all corporate notices and effected all registrations with the Australian Securities & Investments Commission or similar office in its jurisdiction of incorporation and in any other jurisdiction as required by law, and all such filings and registrations are current, complete and accurate.
14.2. Each Party hereby indemnifies the other against all liability or loss arising (directly or indirectly) from, and any costs, charges and expenses incurred in connection with, any inaccuracy in or breach of any of the warranties in this Clause.
14.3. The representations and warranties contained in Clause 14.1. are deemed to be repeated on each day during the term of this Agreement with reference to the facts and circumstances then subsisting.
14.4. The representations and warranties given in this Agreement continue in full force and effect and will survive:
a) the carrying out of this Agreement by either Party; and
d) the termination of this Agreement.
14.5. Each Party shall notify the other as soon as practicable upon becoming aware of any breach of any of the representations or warranties contained in this Agreement.
15.1. A notice (and other documents) is deemed to have been given and received -
a) If provided through the HIA TRADEPASS Contractor Business Portal, at the time it is entered;
b) If provided by email to the email address provided to HIA or last communicated in writing to the Party giving the notice, and the Party giving notice is not informed by the email system that the email was not delivered; or
c) if addressed or delivered by post or hand to the relevant address provided to HIA or last communicated in writing to the Party giving the notice; and
d) on the earliest date of:
i. actual receipt;
ii. confirmation of correct transmission of email or fax; or
iii. 3 days after posting.
16. SURVIVAL OF OBLIGATIONS
16.1. The terms of this agreement continue to apply to the parties (including to any permitted assignee) despite:
a) the completion or termination of this agreement; and
b) any permitted assignment of any rights under this agreement.
17.1. This agreement constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite:
a) any prior agreement in conflict with or at variance with the agreement; or
b) any representations, correspondence or other documents relating to the subject matter of the agreement.
17.2. This agreement (including this clause) can only be amended, supplemented, replaced or novated by another document signed by the parties.
17.3. Any provision in this agreement which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of the agreement.
17.4. This Agreement will be governed by, and construed in accordance with, the laws of the Australian Capital Territory and each Party hereby unconditionally submits to the non-exclusive jurisdiction of the courts of that Territory.
18.1 In this agreement, except where the context otherwise requires -
a) Accredit and Accreditation means a Contractor approved by HIA in relation to the HIA Business Standards for Contractors;
b) agreement means the agreement between the parties evidenced in this document;
c) Approval/ Approve and Verification/ Verify and like terms means a Contractor who has been deemed conform with the HIA Business Standards for Contractors
d) Compliant and Compliance means a Contractor who complies with the HIA Business Standards for Contractors;
e) Contractor Business or Contractor means a trade Contractor who is listed on the HIA TRADEPASS Contractor Business Portal as available for engagement by a Principal Contractor;
f) Corporate information includes all records (including copies) and information relating to the policies, operations and business activities (including without limitation financial information, contact details, insurances, registrations, services offered, lists of members/sponsors/advertisers and affinity partners, trade secrets, and other information which by its nature is confidential) of the party fee and the method of calculating how much of the fee is payable at the times for making payment are as stated from time to time on www.hia.com.au
g) HIA means Housing Industry Association Limited ACN 004 631 752;
h) HIA Business Standards for Contractors
means the standards adopted by HIA from time to time in relation to the conduct of a business as an independent contractor;
i) HIA TRADEPASS means the HIA scheme for the accreditation of contractors.
j) HIA TRADEPASS Web Application means the application accessed through the HIA TradeLink Portal for Contractor Businesses and/or Principal Contractors on www.hia.com.au
k) HIA Group means HIA Limited, HIA Insurance Services Pty Limited, HIA Apprentices Ltd and their related body corporates;
l) intellectual property means any patent, registered design, trade mark or name, copyright or other protected right;
m) Party means a party to this contract with HIA.
n) Principal Contractor means a person who is seeking to engage a Contractor Business through the HIA TRADEPASS Contractor Web Application; and
o) You means the other party to this contract with HIA
and like words have a corresponding meaning.
18.2 In this agreement –
a) references to days means calendar days and references to a person includes an individual, firm or a body, corporate or unincorporate;
b) clause headings and sub-clause headings are not part of this agreement or cannot be used in its interpretation;
c) words in the singular include the plural and words in the plural include the singular, according to the requirements of the context; and
d) words importing a gender include every gender.