1. Interpretation
    1. The parties to an Agreement specifically agree that these terms are the terms of the Agreement or contract between them;
    2. Headings and clause headings have been inserted for guidance only and are not to be taken into account in interpreting these conditions;
    3. Reference to:
      1. One gender includes the other gender;
      2. The singular includes the plural and the plural includes the singular;
      3. A person includes a body corporate, trust, partnership, unincorporated body or other entity whether or not it comprises a separate legal entity;
      4. The word “including”, and other forms of the same word, are not words of limitation;
      5. Mentioning anything after the words “include”, “including”, “for example” or similar expression does not limit what else may be included;
      6. Where a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
    4. A reference to an Act of Parliament includes that Act, any subordinate legislation, regulations or other instrument made under it and also includes that Act as amended from time to time and any similar Act of Parliament, regulation that might be enacted in replacement of that Act or any provision thereof.
    5. A condition of this contract must not be construed to the disadvantage of a person merely because that person was responsible for the preparation of the Conditions or the inclusion of the condition in the contract.
    6. The following terms are defined for the purpose of an Agreement:-


      “HTG” means Healthcare Technology Group Pty Ltd (ACN 645 358 890);


      “Agreement” means any contract that HTG enters into pursuant to which HTG is to undertake work, supply goods or to supply and install goods for a Customer;


      “Agreement Document” means the documents set out in clause 3 herein;


      “Business Day” means any day other than:-
      1. A Saturday or a Sunday;
      2. A public holiday, special holiday or bank holiday in the place at which work is to be performed or goods delivered;
      3. The days between:-
        1. 22 to 24 December;
        2. 27 to 31 December and
        3. 2 to 10 January
      including each of days mentioned in subparagraphs (i) to (iii) above.


      “Customer” means any person with whom HTG enters into an Agreement pursuant to which HTG is to undertake work for, supply Goods or to supply and install Goods to or for that person;


      “Goods” means any goods that HTG supplies to a Customer pursuant to an Agreement, including all components required to install or maintain a nurse call system;


      “Latent Condition” means the physical conditions on a Site or its surroundings and includes any building, anything found in a building or an artificial thing that differs materially from:-
      1. Any plan, specification or other document provided by the Customer, its servants or agents or on its behalf; or
      2. Those that HTG should reasonably have anticipated at the time it provided its quote or tender from the information supplied by the Customer;
      “Site” means the property or building to which HTG is to deliver goods or in or upon which it is perform works including the supply and installation of nurse call system;


      “Substantial Breach” includes:-
      1. A failure by the Customer to pay any money due, payable or due and payable pursuant to an Agreement or to pay such money by the time required by these Terms and Conditions or an Agreement;
      2. Any attempt by the Customer to set off against any money due, payable or due and payable to HTG any claim that the Customer has or considers it has against HTG;
      3. A failure by the Customer to take out any insurance required by an Agreement, including a Customer not taking out the insurance in the names of both HTG and the Customer;
      4. A failure by the Customer to provide access as required by an Agreement.
      “Work” or “Works” means the work that HTG is to undertake pursuant to an Agreement, including the supply of any Goods;
  2. Application: These terms apply to any contract entered into by a Customer with HTG, including where HTG commences Work in the absence of any specific acceptance of its quote or contract terms being agreed.
  3. Agreement Documents: An Agreement consists of:-
    1. Any variation to an Agreement;
    2. Any quote or tender provided by HTG, including any terms relating to the Works to be carried out by HTG and particularly any inclusions or exclusions contained therein;
    3. These Conditions of Contract;
    4. Any plans provided by a Customer;
    5. Any specifications provided by a Customer; and
    6. Any other documents agreed by the Customer and HTG.
  4. Ambiguity or discrepancy: If any ambiguity or discrepancy is discovered in or between the Agreement Documents then any such ambiguity or discrepancy is to be resolved:-
    1. In accordance with the Agreement Documents in the order in which they appear in clause 3 herein, provided that figured dimensions are to prevail over scaled dimensions appearing in any Agreement Document; or
    2. If the ambiguity or discrepancy is not or cannot be resolved by the application of clause 4.1 herein, in accordance with HTG’s interpretation as to how the ambiguity or discrepancy is to be resolved. HTG is to provide its interpretation to the Customer within a reasonable time after the ambiguity or discrepancy is either noticed by HTG or HTG is notified of the ambiguity or discrepancy.
  5. Invoicing: Where the Works are to be completed within the month in which HTG commences its Work, HTG may invoice the Customer when it has completed the Work.


    If the Works are not to be completed within the month in which the HTG commences its Work, HTG may issue progress claims to the Customer progressively for the value of the work it has performed. HTG may issue its progress claim to the Customer on the 25th day of each month in which it performs work and for six (6) months after it has completed work. HTG may claim payment for work up to the end of the 24th day of the month in which it issues a progress claim. However, notwithstanding any other term of an Agreement, HTG may issue a progress claim to the Customer:-
    1. Upon completing the Work for any Work performed or Goods supplied up to and including the date the Works were completed or the Goods supplied; and
    2. Upon the expiration of any Defects Liability Period for any Works performed or Goods supplied up to and including the end of the Defects Liability Period, including for the return of any retention money.
    To avoid doubt:-
    1. The 25th day of a month is the reference date applicable to an Agreement for the purposes of the Building Industry Fairness (Security of Payment) Act 2017; and
    2. Any invoice sent by HTG is a progress claim.
  6. Payment: The Customer must pay:-
    1. The price payable pursuant to an Agreement without any deductions whatsoever;
    2. Any money invoiced by HTG or claimed in a progress claim no later than eleven (11) Business Days after the date of HTG’s invoice or progress claim.


      To avoid doubt:-
      1. The Customer is not entitled to retain any retention monies, whether by way of security or otherwise;
      2. The Customer is not entitled to retain or set off against any amount due, payable or due and payable to HTG pursuant to an Agreement any amount that it is owed or claims to be owed, whether at law or in equity, and whether arising out of any matter relating to the Agreement or otherwise; and
      3. Any amount invoiced by HTG or contained in a progress claim becomes due and payable on the eleventh (11th) Business Day after the date of the said invoice or progress claim.
    3. Notwithstanding any other term of an Agreement, if the Customer has an approved credit facility with HTG, then HTG may, in its sole and absolute discretion, agree that payment by that Customer is due and payable thirty (30) days after the date of HTG’s invoice or progress claim.
  7. Interest on unpaid amounts: If the Customer fails to pay HTG any money that is due, payable or due and payable pursuant to an Agreement, then the Customer must pay interest on the monies not paid at the rate provided for by s.58 of the Civil Proceedings Act 2011 plus two percent (2%) from the date on which the monies were due, payable or due and payable as the case may be.
  8. Suspension of works: If the Customer fails to pay any amount due or payable to HTG, then in addition to any other rights HTG may have, it may immediately suspend the Works by giving the Customer notice in writing. To avoid doubt, this includes the right for HTG not to deliver any Goods to the Customer.
  9. Rise and fall: The Customer acknowledges that the price payable for HTG’s Goods or services is based upon the completion date that has been contemplated or agreed. If the Works are delayed for any reason whatsoever that is beyond HTG’s control, and notwithstanding any other term of an Agreement, the Customer must pay any increase in HTG’s cost of labour or the cost of obtaining Goods that has occurred during or because of the period of delay. Any such increase is deemed to be a debt due and payable by the Customer to HTG eleven (11) business days after being invoiced by HTG.
  10. Subcontracting: HTG may subcontract all or any part of the Work.
  11. Assignment: HTG may assign any or all of its rights pursuant to an Agreement. The Customer must not assign any of its rights pursuant to an Agreement without HTG’s written consent.
  12. Access to the Site: The Customer must give HTG, including its subcontractors, full access to the Site sufficient to enable it to undertake the Work. Notwithstanding any other term of an Agreement, HTG is entitled to an extension of time to complete any Works it is required to undertake if it is delayed because sufficient access to the Site is not provided. To avoid doubt, full access to the Site includes sufficient possession of it to enable HTG to undertake any Work required of it pursuant to an Agreement.
  13. Risk in goods: If HTG notifies the Customer of the date on which Goods are to be delivered to the Site, the Goods are at the risk of the Customer upon their being loaded upon any vehicle for the purpose of delivery to the Customer or the Site. Otherwise risk in the Goods passes to the Customer upon their delivery to the site.


    The Customer must ensure that it takes out appropriate insurance to cover the risk of damage to or destruction of any Goods to be supplied by HTG from the time risk passes to the Customer. The Customer indemnifies HTG against any loss or damage that it or HTG may suffer, including consequential loss or damage, arising out of the loss of or damage to Goods being supplied by HTG from the time that risk in the Goods has passed to the Customer.


    The Customer must provide HTG with a copy of any insurance policy or confirmation of insurance cover within two (2) Business Days of receiving a written request from HTG.
  14. Insurance of work: In addition to any other obligation relating to insurance pursuant to these Conditions of Contract, the Customer must insure the Works to be carried out by HTG for:-
    1. Any agreed amount; or
    2. An amount that is sufficient to cover the costs of rectifying any damage or replacing any aspect of the Works, including all the Works.


      To avoid doubt, if any of the Works to be carried out by HTG or any Goods it is to supply pursuant to an Agreement are lost, damaged or destroyed, the Customer’s sole entitlement is to the amount it may recover pursuant the insurance it is required to take out pursuant to this clause. The Customer indemnifies HTG in relation to any further or other losses or damage that it may suffer arising out of any loss of, damage to or destruction of any Works carried out by HTG, including any failure to take out the insurance required by this clause.


      The insurance to be taken out by the Customer pursuant to this clause must:-
      1. Be taken out in the joint names of HTG and the Customer. To avoid doubt, taking out insurance that notes HTG’s interest in the Works does not comply with this requirement. The policy must be in the names of both HTG and the Customer.
      2. Ensure the Works against all liability, loss, damage, action, claim or proceeding whatsoever, including, without limitation, in respect of fire, explosion, earthquake, pandemic, lightning, storm or tempest, flood and civil commotion.
    3. Notwithstanding any other term of an Agreement, if the Customer has an approved credit facility with HTG, then HTG may, in its sole and absolute discretion, agree that payment by that Customer is due and payable thirty (30) days after the date of HTG’s invoice or progress claim.
  15. Public Liability Insurance: In addition to any other obligation relating to insurance pursuant to these Conditions of Contract, the Customer must take out public liability insurance in an amount of not less than twenty million dollars ($20.000,000.00) per claim in relation to any liability, loss, damage, claim or proceedings relating to:-
    1. The death of a person;
    2. Any personal injury; or
    3. Damage to any real or personal propertythat might be caused by or arise out of the carrying out of the Works. This insurance must be taken out in the joint names of HTG and the Customer. To avoid doubt, taking out insurance that notes HTG’s interest in the Works does not comply with this requirement. The policy must be in the names of both HTG and the Customer.


      The Customer hereby indemnifies HTG against any losses, damages, claims or proceedings that arise out of the factors listed in paragraphs 15.1 to 15.3 herein or that are caused by or contributed to by the Customer’s failure to take out the insurance required by this clause.
  16. Latent Condition: If a Latent Condition becomes apparent before or during the time in which HTG is carrying out Work then the following conditions apply:-
    1. The Customer must pay HTG the reasonable cost for HTG having to deal with the Latent Condition, including the cost of any additional work or additional resources that may be needed to deal with the Latent Condition;
    2. HTG is entitled to an extension of time to any date set by the Agreement for the completion of its works for the time it takes for it to deal with the Latent Condition.
  17. Variations: A variation to an Agreement may be made orally. However, if HTG requests that a variation be put into writing, the Customer must put it in writing immediately and in any event within one (1) Business Day of the request being made. HTG is not required to undertake any work relating to a variation if it has requested the variation be put into writing until it has been put into writing.


    Insofar as a variation is put into writing, it must include:-
    1. A description of the variation, including any change to, increase or decrease in the Works to be performed by HTG;
    2. The agreed price payable to HTG for the variation, or, if applicable, the decrease in the price payable to it pursuant to the Agreement; and
    3. Any extension of time agreed to the date for completion of the Work
    If HTG and the Customer do not agree either the price change applicable to a variation or any extension of time applicable to a variation, then:-
    1. Where the variation changes or increases the Work required by the Agreement, the price payable shall be a reasonable price for the work required for the variation, including an amount for profit and overheads;
    2. Where the variation decreases the Work required by the Agreement, the amount by which the price payable pursuant to the Agreement is to be reduced shall be a reasonable price for the Work that does not have to be performed by HTG, but there shall not be any reduction in the price payable for profit or overheads; and
    3. Where the variation involves a change or increase in the Work that HTG must perform pursuant to the Agreement, it is entitled to a reasonable extension of time in which to carry out the revised Works or the extra Works required by the variation;
    4. If the variation involves a decrease in the Work that HTG is required to perform pursuant to the Agreement, there shall be no change to the date upon which the said work is to be completed.
    HTG may, but is not required to, invoice the Customer for work relating to a variation in accordance with clause 5 herein. To avoid doubt, HTG is not required to issue an invoice or progress claim for work that is the subject of a variation in the next progress claim it issues.


    The Customer has no power or entitlement to direct HTG to vary the Agreement or the Work to be performed or goods to be supplied pursuant to an Agreement.


    If any change to the Works required by an Agreement is required so as to enable the Works to comply with any requirement of a statutory or other body, including any building approval or development approval relating to the Works, then any such work shall be a deemed variation to the works required by the Agreement and HTG is entitled to a change in the price payable pursuant to the Agreement and an extension of time for the time it takes to undertake any extra or changed Work.
  18. Insolvency: If either HTG or the Customer:
    1. Informs the other in writing or its creditors generally that it is insolvent; or
    2. Becomes or is bankrupt or seeks to take advantage of the laws relating to bankruptcy; or
    3. If a corporation, has a court order made for the winding up of the party or if a resolution is passed for its winding up
    he other party may immediately terminate the Agreement by giving written notice to that effect.


    If HTG terminates the Agreement pursuant to this clause, it is entitled to be paid the amount calculated pursuant to clause 15 herein
  19. Termination by Default: If either party considers that the other party is in Substantial Breach of the Agreement, then:-
    1. It must give the other party a Notice to Remedy Breach giving the defaulting party not less than ten (10) business days after the date on which the notice is given in which to either:-
      1. Remedy those breaches capable of being remedied in that time; or
      2. If any breach is incapable of being remedied in that time, substantially commence to remedy such breach;
    2. If the party in Substantial Breach does not remedy such breach or substantially commence to remedy such breach as set out in clause 14.1 herein, the other party may terminate this contract by giving notice in writing to that effect.


      Nothing in this clause affects either party’s rights at common law in relation to any breach of the Agreement.
  20. Consequences of termination by Customer: If the Customer terminates an Agreement, the Customer must pay HTG:-
    1. The reasonable value of any Work, including variations, that it has performed to the date of termination, including an amount for profit and overheads; and
    2. Its costs for quitting the Site, including the removal of its plant and equipment;
    3. The cost of any Goods purchased by HTG for provision to the Customer, except to the extent that such Goods may be returned to the person who sold them to HTG;
    4. The cost of any Goods ordered by HTG for provision to the Customer, except where any such order can be cancelled without penalty. If HTG can cancel an order but with a penalty, the amount of the penalty is a debt due and owing by the Customer to HTG;
    5. Any other costs or losses incurred by HTG directly or indirectly caused by the termination of the Agreement.
  21. Extension of time: HTG is entitled to an extension of time in which to complete the Work if the Work is delayed for any reason beyond its control, including:-
    1. Inclement weather;
    2. The effects of inclement weather
    3. Any variation to the Works;
    4. An act of God, fire, explosion, earthquake, pandemic or civil commotion;
    5. An industrial dispute;
    6. A dispute with the owner of any property or a neighbour;
    7. Anything done or not done by the Customer that causes or contributes to a delay in HTG being able to meet its obligations under an Agreement;
    8. A delay in obtaining any approval relating to the Work;
    9. The industry shutdown period, being a 3-week period commencing on or about 22 December in each year if undertaking the Works in that period was not required or contemplated by the Agreement at the time that it was entered into;
    10. A delay in the supply of Goods to be supplied by HTG.
    HTG may claim more than one extension of time if a particular delay has more than one effect on the carrying out of the Works.


    HTG may claim an extension of time at any time up to and including the date on which it claims payment for having completed the Works or the date on which the Works are completed. This condition survives termination of the Agreement.
  22. Delay damages: If, after HTG has commenced Work, its carrying out of the Work is delayed by anything caused or contributed to by the Customer, then the Customer must pay HTG the higher of the amount of:-
    1. The reasonable costs incurred by HTG because of the delay; o
    2. 0.125% of the price payable to HTG pursuant to the Agreement for each week or part of a week of the delay.
  23. Late Completion (Liquidated) Damages:


    If HTG fails to complete the Works within the time agreed to or contemplated by the Agreement, the Customer is entitled to liquidated damages in the sum of fifty dollars ($50.00) per day for each day that HTG has not completed the Works within the time agreed or contemplated until the earlier of:
    1. The date that the Works are completed;
    2. The date that the Agreement is terminated; or
    3. The date that the Customer takes control or possession of the Works or any part of them.
    The Customer hereby acknowledges and warrants that:-
    1. It has fully considered the losses, costs or damages that it might suffer if the Works are not completed within the time agreed to or contemplated by the Agreement;
    2. The sum of fifty dollars ($50.00) per day represents a genuine estimate of the losses, costs or damages it might suffer if the Works are not completed within the time agreed to or contemplated by the Agreement;
    3. It has no entitlement of any kind whatsoever against HTG except for the liquidated damages provided for in this condition in relation to any failure by HTG to complete the Works within the time agreed to or contemplated by the Agreement.
    The Customer’s right to liquidated damages, including the limitation in paragraph 19(c) above, survives termination of an Agreement.
  24. Debt Collection costs: The Customer must pay any costs incurred by HTG in relation to or associated with the costs of recovering or attempting to recover any amount HTG claims is due or payable to it pursuant to an Agreement. The costs payable by the Customer include legal costs on a full indemnity basis.


    To avoid doubt, the Customer’s liability for costs pursuant to this clause is not limited to costs on an indemnity basis as contained in the Uniform Civil Procedure Rules 1999 and the Customer must pay the actual amount paid by HTG to a legal practitioner or owed by it to a legal practitioner in relation to the recovery or attempted recovery of money pursuant to this clause. Further to avoid doubt, the legal costs recoverable include any legal costs incurred by HTG prior to the institution of any legal proceedings.
  25. Charge on property: The Customer hereby charges:-
    1. Any personal property owned by it at the date of the Agreement or that it becomes the owner of after the date of the Agreement;
    2. Any real property owned by it as at the date of the Agreement of that it becomes the owner of after the date of the Agreement;
    for the due payment of all money that is or may become payable to HTG pursuant to the Agreement. Insofar as real property is concerned, the Customer grants an equitable mortgage in favour of HTG for the due payment of any money that is or may become payable to HTG pursuant to the Agreement.


    If requested by HTG, the Customer must provide HTG with a duly executed mortgage in registerable form to secure the charge over the land.


    To avoid doubt, HTG may lodge a caveat over any land owned by the Customer to support the charge hereby given and the Customer irrevocably consents to the registration of any such caveat.


    The Customer must pay:-
    1. Any legal fees, on a full indemnity basis;
    2. Any stamp duty; and
    3. Any registration fee
    that are payable or paid by HTG in relation to:-
    1. Any caveat or mortgage prepared or lodged pursuant to this clause; and
    2. Any withdrawal of caveat or release of mortgage.
  26. Notices: Any notice from one party to the other may be given by
    1. Delivering it by hand to the other party
    2. Posting it by express post to the other party’s last known address or, in the case of a company, its registered office;
    3. Emailing it to the party’s last known email address
    For the purposes of this clause:-
    1. A party’s last known address includes:-
      1. Any address that forms part of the records kept by the Queensland Building and Construction Commission; and
      2. Any address that is included in any website maintained by or apparently maintained by the party to whom the notice is to be given .
    2. A party’s last known email address includes:
      1. The last email address appearing on an email sent by the party to whom the notice is to be given; and
      2. Any email address appearing on a website maintained by or apparently maintained by the party to whom the notice is to be given.
    3. A notice sent by express post is deemed to have been delivered on the date that appears in the records kept by Australia Post as the date on which it was delivered;
    4. A notice that is sent by email is deemed to have been delivered on the date on which it was transmitted to the email server of the party to whom it was addressed;
    5. If a notice is served after 4pm on a day, it is deemed to have been received by the party to whom it was being delivered on the next Business Day.
  27. Governing law: The law governing an Agreement and the Conditions of Contract and their interpretation is the law of the State of Queensland. The Parties agree to the non-exclusive jurisdiction of the Courts in the State of Queensland.
  28. Entire Agreement: Except to the extent that any other document is included in an Agreement by specific reference, these Conditions of Contract:-
    1. Constitute the whole agreement between the parties; and
    2. Supersede any and all prior agreements, representations, warranties, promises, statements and negotiations in respect of the Works.
  29. Waiver: A right created by these conditions cannot be waived except in writing signed by the party entitled to that right. A delay by a party in exercising a right or a failure to exercise a right does not constitute a waiver of that right. If any party does waive a right, either wholly or in part, that waiver does not operate as a subsequent waiver of the same right or any other right that the party has.
  30. Severance: If any condition or part of any condition is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the condition (or where possible, the offending part) is to be severed from the conditions of an Agreement without affecting the enforceability, validity or legality of the remaining conditions or parts of those conditions, which will continue in full force and effect.
  31. Defects Liability: The defects liability period is twelve (12) months after HTG has completed the Works. During that time, HTG must rectify any defect or omission in the Works that:-
    1. Existed at the date it completed the Works; or
    2. Become apparent prior to the expiration of the defects liability period; and
    3. Of which it is given notice by the Customer before the expiration of the defects liability period but not otherwise.
    The Customer must give HTG full access to the Site during HTG’s normal business hours to enable it to carry out any rectification work pursuant to this clause.