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Subcontractor information and collection of Excess
A Everclear Glass & Glazing has requested the Subcontractor to supply, and the Subcontractor has agreed to supply, the Services to the Everclear Glass & Glazing customer in the Glass & Glazing Supply Area during the Term.
B This Agreement records the terms of the Subcontractor's appointment as a preferred subcontractor of the Services to the Everclear Glass & Glazing customer in the Supply Area and the terms applicable to each Service Order.
Date of Agreement
Date of terms and conditions approval
Everclear Glass &
Everclear Unit Trust T/A Everclear Glass & Glazing
ABN 19 471 099 361
Unit 13/4 Abbott Road
Seven Hills NSW 2147
Everclear Glass & Glazing
For the purposes of this Agreement with Everclear Glass & Glazing is any one of the following entities:
1. Everclear unit Trust trading as Everclear Glass & Glazing
ABN 19 471 099 361
2. Everclear Glass & Glazing Pty Limited
ABN 38 082 795 355
Date of terms and conditions approval
30th November 2012
Please nominate service area by postcode Attached: METRO Schedule A (Blue)
The Subcontractor must provide the following Services as detailed in a Service Order:
§ Assessment Services: determining the extent of damage to a Customer's glass, providing advice on the most appropriate repair or reinstatement method and providing Reports, Scope of Works or other related services in connection with a Claim;
§ Glazing Services Estimate: an estimate provided to an Everclear Glass & Glazing customer by the subcontractor to complete the Glazing Services;
§ Glazing Services: the supply, repair and/or replacement of a Customer's glass or any other services in connection with a Claim;
§ Scope of Works: a report provided by the Subcontractor to an Everclear Glass & Glazing customer in respect of a Claim; or
§ General Services: general services relating to this Agreement as required by an Everclear Glass & Glazing Subcontractor from time to time.
§ Initial Customer Contact: Subcontractor must contact the Customer within one hour of receiving a Service Order.
§ Site Attendance: Subcontractor must attend the Customer's premises within one day of Initial Customer Contact, subject to Customer's agreement. If advised by the Everclear Glass & Glazing customer that the Claim is an emergency, Subcontractor must attend the Customer's premises within two hours of Initial Customer Contact, subject to Customer's agreement.
§ Commencement of Repair: Subcontractor must complete the Services requested in a Service Order within one day of receiving the Service Order subject to Customer's agreement and availability of materials.
§ Response to Request for Glazing Services Estimate: Subcontractor must respond to a request from Everclear Glass & Glazing for a Glazing Services Estimate within one Business Day.
§ Customer Complaints: Subcontractor must not receive customer complaints totalling more than 1% of total allocated work where Subcontractor provides Services.
§ Customer Complaint Resolution: Subcontractor must resolve 75% of customer complaints within 5 Business Days and 100% of customer complaints within 15 Business Days in accordance with the descriptions and procedures.
The Subcontractor must provide the following Reports to Everclear Glass & Glazing:
§ Progress Report: A report detailing the progress of the Subcontractor's performance of the Services to be provided quarterly;
§ General Reports: To be advised by Everclear Glass& Glazing to the Subcontractor as required from time to time.
The Threshold Amount is:
§ $1200 (inclusive of any Excess); or
§ such other amount notified by Everclear Glass & Glazing to the Subcontractor in writing.
The Fees are:
§ if specified in a Service Order, the fees in that Service Order;
§ if quoted as part of an Estimate which has been accepted by Everclear Glass & Glazing in accordance with clause 6.3, the fees in that Estimate; or
§ in all other cases, as specified below:
Glass Price Matrix: refer to schedule 1. Metro 2. Regional
Prices excluding GST on matrix
Everclear Glass & Glazing Nominated Representative
Supply Chain Management Team
Everclear Glass & Glazing
Unit 13/4 Abbott Road
Seven Hills NSW 2147
Ph: 1300 everclear
Subcontractor Nominated Representative
The Subcontractor must hold insurance policies with at least the amount of cover described below:
§ contracts work material damage insurance for an appropriate amount;
§ public liability insurance for an amount of not less than $20 million per event;
§ product liability insurance for an amount of not less than $20 million per event;
§ workers compensation insurance as required by law for its employees engaged in provision of the Services; and
§ any other insurance required by the laws of, or recommended by the relevant industry association, in the State or Territory where the Services are provided.
|Subcontract information and collection of excess
Private Jobs : Private jobs which are allocated to you outside any insurance claims will be allocated by logging in online and retrieving your job. No excess is required to be collected with private jobs forwarded to you via our system .
All private jobs you are allocated will need to be invoiced on completion as per your pricing matrix agreed with Everclear Glass & Glazing, with an additional 20 % Management fee of the generated invoice to Everclear Glass & Glazing, which is automatically calculated. This charge is to cover costs associated with allocating work to you. Everclear Glass will simply bill you on completion of work.
All appropriate paperwork must be sent on completion, this includes signed order and your invoice, otherwise invoices cannot be paid.
Insurance Jobs : All orders based on insurance claims will be allocated by logging in online, you will be able to access information and verify status per job. If excess is requested on order, it is the subcontractors responsibility to collect any excess at all times. As it is an automatic process with invoicing that the excess will be deducted.
If the job is more than excess: Excess will still need to be collected and will automatically be deducted off final invoice. Appropriate paperwork will need to be sent to Everclear Glass for payments within 7 days.
If the job is less than the excess: excess will still need to be collected from customer by the Subcontractor and the pricing schedule will calculate amount we will pay you. The excess received by the subcontractor will offset payment required on invoice, the remainder of excess will need to be sent to Everclear Glass & Glazing with subcontractor paperwork. (wheather it be cheque, direct deposit etc). Everclear Glass and Glazing will then reimburse customer the amount of monies remaining via our system, and Everclear Glass will communicate to the customer if insurance claim will not be necessary.
If no Excess is requested on the claim, The order can be processed and completed without the need to collect any monies. The process is to simply complete the appropriate work and send your paperwork and price will be generated via the pricing schedule for payment.
Due to confidential contract agreements prices or value of job must not be discussed with customer at anytime .
The value of jobs over $1200 will require approval prior to commencement, before and after photos will also be required for claim processing.
Unless the context otherwise requires:
(a) all capitalised terms in this Agreement have the meaning set out in the Agreement Details or Schedule 1; and
(b) this Agreement will be interpreted in accordance with Schedule 1.
2.1 Master Agreement
This Agreement is intended to operate as a master agreement between the Subcontractor and Everclear Glass & Glazing which:
(a) appoints the Subcontractor as a preferred supplier to the Everclear Glass & Glazing customers;
(b) constitutes a standing offer from the Subcontractor to provide Services to the Everclear Glass & Glazing customers; and
(c) sets out the overarching terms and conditions that apply to the provision of the Services by the Subcontractor to Everclear Glass & Glazing and for the benefit of Customers.
An Everclear Glass & Glazing customer may request and receive Services by entering into a Service Order with the Subcontractor in accordance with the procedure set out in clause 6.
3.1 Initial Term
This Agreement commences on the Commencement Date and continues until the End Date (Initial Term) unless:
(a) extended in accordance with clause 3.2; or
(b) terminated earlier in accordance with clause 21.
Everclear Glass & Glazing may, in its sole discretion, extend the Initial Term by:
(a) 12 months so that this Agreement ends on the first anniversary of the End Date (Extended Term); and
(b) a further 12 months from the first anniversary of the End Date so that this Agreement ends on the second anniversary of the End Date (Further Extended Term),
by giving the Subcontractor written notice of each extension at least 60 days before the expiration of the then current term (each an Extension Notice).
(a) Everclear Glass & Glazing appoints the Subcontractor as a preferred Subcontractor of the Services to the Everclear Glass & Glazing customers in the Supply Area on the terms of this Agreement.
(b) Everclear Glass & Glazing may amend the Supply Area from time to time by notice to the Subcontractor.
(a) Subject to clause 4.2(b), the Subcontractor is appointed on a non-exclusive basis.
There are no consequences for the Subcontractor not accepting an exclusivity request.
The Subcontractor acknowledges that:
(a) Everclear Glass & Glazing makes no warranty about the volume of Services to be acquired by Everclear Glass & Glazing under this Agreement and any Service Orders; and
(b) Everclear Glass & Glazing may in their discretion elect not to acquire any Services from the Subcontractors (whether due to the Subcontractor's poor performance or for any other reason).
5.1 Provision of the Services
The Subcontractor must provide the Services:
(a) in accordance with this Agreement, and the reasonable and lawful directions of Everclear Glass & Glazing or the Everclear Glass & Glazing customers;
(b) in a proper, workmanlike and professional manner, and with due care, skill and diligence;
(c) in a timely manner and with minimal delays (and the Subcontractor must advise Everclear Glass & glazing and the relevant Everclear Glass & glazing customer immediately if it is unable to perform the Services in the timeframe stipulated under a Service Order); and
(d) using the lowest cost repair option for labour and materials that allows it to meet its obligations under this Agreement.
(a) An Everclear Glass & Glazing customer may enter into a Service / Job Order with the Subcontractor in accordance with the procedure set out in this clause 6.
(b) Each Service Order will include:
(i) the scope of Services that the Subcontractor must supply to an Everclear Glass & glazing customer under that Service Order; and
(ii) any specific terms and conditions that will apply to the provision of the Services under that Service Order.
(c) The Subcontractor will not be obliged to perform Services, and an Everclear Glass & glazing customer will not be liable to make payment in respect of any Services, unless a Service / Job Order has first been entered into in accordance with this clause 6.
(a) Everclear Glass & Glazing may from time to time request the Subcontractor to supply Services (Services Request).
the Subcontractor does not have the capacity to perform the Services specified in the Services Request in the timeframe required.
(c) Where the Subcontractor rejects the Services Request in accordance with clause 6.2(b), Everclear Glass & Glazing may:
(i) seek the Subcontractor's agreement to any necessary amendments to the Services Request to enable the Subcontractor to accept it; or
(ii) refer the relevant work to an alternative Subcontractor.
(d) The Subcontractor will be deemed to have accepted a Services Request, and a binding Service Order will be formed, if the Subcontractor commences performing the Services which are the subject of the Services Request.
(e) Once a Services Request becomes a binding Service / Job Order, the Subcontractor must carry out the Services in accordance with clause 6.3.
(f) Everclear Glass & Glazing may cancel any Service / Job Order and refer the relevant work to an alternate Subcontractor at any time. In such instance, the Subcontractor must invoice the Everclear Glass & glazing only for the work completed.
The Subcontractor must carry out the Services specified in a Service / Job Order in accordance with the terms of that Service / Job Order, subject to the following:
(a) if the Subcontractor is required to provide an estimate (including a Glazing Services Estimate) or quote (Estimate) under a Service / Job Order, such Estimate must be calculated using the same principles (including rates) as used to calculate the Fees; and
(b) if an Estimate exceeds the Threshold Amount, the Subcontractor must not proceed with the Services within the scope of that Estimate unless and until it has received Everclear Glass & Glazing approval to do so.
(a) A Service / Job Order:
(i) comprises a separate and binding contract between the Subcontractor and an Everclear Glass & glazing customer; and
(ii) incorporates by reference all of the terms of this Agreement other than clauses 2, 4.1-4.3 and 6.1-6.5, and in this respect all references in the terms incorporated into a Service / Job Order to:
(A) the 'Agreement' will be read as a reference to the Service / Job Order itself (and not the Agreement); and
(B) 'Everclear Glass & Glazing' will be read as a reference to the Everclear Glass & Glazing customer that has entered into the Service / Job Order with the Subcontractor.
(b) To the extent of any inconsistency between this Agreement and a Service / Job Order, this Agreement will prevail.
The Threshold Amount may be increased or decreased by Everclear Glass & Glazing from time to time.
(a) Everclear Glass & Glazing has accepted an Estimate or a variation to an Estimate (Original Estimate) and the Subcontractor has cause to change that Original Estimate, the Subcontractor must:
(i) as soon as possible issue to Everclear Glass & Glazing a written request to vary the applicable Service / Job Order (Variation); and
(ii) if the Variation includes additional cost, provide supporting evidence for the Variation on request to Everclear Glass & Glazing.
(b) A Variation will only be effective once approved in writing by Everclear Glass & Glazing.
7.1 Service Levels
The Subcontractor must achieve or exceed the Service Levels.
If the Subcontractor fails to meet the Service Levels, or causes delays in the performance and completion of the Services which in the reasonable opinion of Everclear Glass & Glazing are unreasonable, Everclear Glass & Glazing may cancel its authority to the Subcontractor to commence or further perform the Services, and/or may transfer the Services to an alternate Subcontractor.
7.3 Non-Claim damage
The Subcontractor must immediately notify Everclear Glass & Glazing if a Claim relates to any damage which:
(a) is not related to the incident in respect of which a Customer has lodged a Claim; or
(b) is in the opinion of the Supplier intentional or fraudulent damage,
and in each case not undertake any further work unless advised by Everclear Glass & Glazing.
The Subcontractor will:
(a) measure and report to Everclear Glass & Glazing on its performance against the Service Levels, including by providing to Everclear Glass & Glazing the Reports; and
(b) co-operate with, and provide assistance to, Everclear Glass & Glazing to enable Everclear Glass & Glazing to monitor the Subcontractor's compliance with the Service Levels (including providing Everclear Glass & Glazing with access to the Subcontractor's financial and non-financial records relating to the Services and allowing Everclear Glass & Glazing to inspect partially completed and finalised Services).
8.1 Agreement to pay Fees
(a) In consideration of the Services, Everclear Glass & Glazing will pay to the Subcontractor the Fees.
(b) Unless otherwise agreed in writing by Everclear Glass & Glazing, the Fees are inclusive of all:
(i) charges for third party goods or services;
(ii) out-of-pocket expenses; and/or
(iii) other expenses,
incurred by the Subcontractor in providing the Services with the approval of Everclear Glass & Glazing.
(a) The Subcontractor must provide an invoice to the Everclear Glass & Glazing within 14 days of the completion of the Services requested in a Service / Job Order.
(b) The invoice must be a tax invoice and must:
(i) comply with the requirements notified by Everclear Glass & Glazing; and
(ii) deduct the amount of any Excess collected by the Subcontractor.
(c) The Subcontractor must not issue an invoice to a Customer, or accept payment from a Customer, with the exception of any Excess, in respect of the Services. Unless private works have been done.
(d) Except for any disputed invoices, Everclear Glass & Glazing will pay the invoice within 30 days of receipt of a properly completed tax invoice.
8.3 Dispute of invoices
Everclear Glass & Glazing will advise the Subcontractor of any disputed Fees, and the reasons for the dispute, within 21 days of receiving an invoice under clause 8.2. Everclear Glass & Glazing and the Subcontractor will use their reasonable endeavours to resolve the dispute and, if necessary, use the dispute resolution procedure referred to in clause 23.5.
8.4 Set off
Everclear Glass & Glazing may set off against the Fees any amounts owed to it by the Subcontractor (whether arising under this Agreement or any other agreement between the Subcontractor and Everclear Glass & Glazing).
9.1 GST Law
A reference to GST Law is a reference to A New Tax System (Goods & Services Tax) Act 1999 (Cth) (GST Law) and words defined in the GST Law have the same meaning in this clause 9.
9.2 Fees exclusive of GST
Fees and any other charges payable under this Agreement are wholly exclusive of and are in addition to any liability for GST arising under any GST Law unless they are expressly stated in this Agreement to be inclusive of GST.
9.3 Tax Invoice
Payment of the Fees and any other charges under this Agreement are subject to receipt of a valid tax invoice at the same time that the Subcontractor issues an account for payment, which must include the details required by any GST Law to enable Everclear Glass & Glazing to claim an input tax credit for that GST.
A party must give the other party an adjustment note within seven days of becoming aware of an adjustment event.
9.5 Failure to provide Australian Business Number
If the Subcontractor does not provide its Australian Business Number to Everclear Glass & Glazing, Everclear Glass & Glazing may withhold and remit to the Australian Taxation Office such amounts as are required to be withheld by Everclear Glass & Glazing under any laws.
9.6 GST on claims
If a party has a claim under or in connection with this Agreement for a cost on which that party must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which that party is entitled to an input tax credit).
9.7 Third party costs
If Everclear Glass & Glazing must pay the Subcontractor for a cost, liability or expense (Cost) that the Subcontractor incurs to a third party, Everclear Glass & Glazing must pay the Cost less any input tax credits which the Subcontractor is entitled to claim. The Subcontractor must provide details of the Cost and any input tax credits to Everclear Glass & Glazing on demand.
10.1 Experience and skill
The Subcontractor warrants and represents that each of its Representatives is and will be:
(a) qualified, competent and experienced to provide the Services;
(b) adequately managed and supervised at all times in order to properly perform their duties; and
(c) given induction and orientation training to effectively and efficiently provide the Services.
10.2 Responsibility for Representatives
The Subcontractor is at all times responsible for the acts and omissions of its Representatives.
10.3 Discretion of Everclear Glass & Glazing
Everclear Glass & Glazing may, acting reasonably, request the removal of any Representative from providing the Services, and the Subcontractor must use its best endeavours to accommodate such request.
11.1 Subcontractor's obligations
Subject to clauses 11.2 and 11.3, the Subcontractor may subcontract its obligations under this Agreement.
The Subcontractor remains primarily liable for carrying out its obligations under this Agreement and is liable for:
(a) a subcontractor's acts and omissions as if they were the acts and omissions of the Subcontractor; and
(b) any and all arrangements between the Subcontractor and a subcontractor (including the payment of any money to the subcontractor).
Everclear Glass & Glazing
Everclear Glass & Glazing may at any time and in its absolute and sole discretion request that the Subcontractor cease using a subcontractor to provide the Services, and the Subcontractor must immediately comply with such request.
The Subcontractor must:
(b) provide a copy of its most recent audited accounts and any other financial records relating to the Subcontractor's business and its ability to provide the Services, as reasonably requested by Everclear Glass & Glazing from time to time.
13.1 Confidentiality obligations
The Subcontractor must keep the Confidential Information confidential.
Unless the Subcontractor obtains the prior written consent of Everclear Glass & Glazing, the Subcontractor must not in any way disclose, reproduce or use the Confidential Information except to the extent:
(a) necessary for providing the Services or carrying out its obligations under this Agreement;
and where disclosure is required by clauses (b) or (c) above, the Subcontractor will:
(d) give Everclear Glass & Glazing notice of the required disclosure as soon as reasonably practicable to enable Everclear Glass & Glazing to take actions to protect its Confidential Information;
(e) ensure the third party recipient of the Confidential Information is made aware that it is confidential; and
(f) limit the disclosure in any way that Everclear Glass & Glazing reasonably requests.
13.3 Subcontractor's Representatives
The Subcontractor may disclose Confidential Information to its Representatives only to the extent necessary in order to provide the Services. The Subcontractor must ensure that each Representative receiving Confidential Information is made aware of, and complies with, this clause 13.
13.4 Return, destruction or deletion of Confidential Information
Except to the extent the Subcontractor is required to retain a copy by law, on completion of the Term or at the request of Everclear Glass & Glazing, the Subcontractor must immediately deliver, erase or destroy (as directed by Everclear Glass & Glazing) all documents and materials in its possession or control that contain Confidential Information.
If requested by Everclear Glass & Glazing, the Subcontractor must certify in writing to Everclear Glass & Glazing that the materials and documents containing Confidential Information have been delivered in full to Everclear Glass & Glazing, erased or destroyed.
14.1 Legislative references
(a) A reference to the Privacy Act means the Privacy Act 1988 (Cth) (Privacy Act).
(b) 'Personal Information' and 'National Privacy Principles' have the same meaning as in the Privacy Act.
14.2 Privacy obligations
The Subcontractor must not use or disclose Personal Information except in accordance with clause 14.3. The Subcontractor must:
(a) assist Everclear Glass & Glazing to comply with, and not cause or allow anything to be done that results in Everclear Glass & Glazing breaching, its obligations under the Privacy Act;
(b) comply with the National Privacy Principles as if they applied to the Subcontractor; and
(c) take all necessary steps to protect Personal Information against unauthorised use, modification or loss.
Unless the Subcontractor obtains the prior written consent of Everclear Glass & Glazing, the Subcontractor may only disclose Personal Information:
(a) if required by law, and in such a case notify Everclear Glass & Glazing when it becomes aware of that obligation, and give Everclear Glass & Glazing an opportunity to object to or limit the extent of the disclosure; or
(b) to discharge its obligations under this Agreement.
If the Subcontractor becomes aware of a complaint alleging breach of an obligation under the Privacy Act relating to this Agreement, the Subcontractor must immediately notify Everclear Glass & Glazing and:
(a) provide Everclear Glass & Glazing with any information and copies of any documents relating to the complaint;
(b) do everything reasonable to resolve the complaint as requested by Everclear Glass & Glazing; and
(c) keep Everclear Glass & Glazing informed about the complaint.
, and use of Everclear Glass & Glazing Trade Marks and Intellectual Property
The Subcontractor must not publish any release or make any announcement about this Agreement, the Services or the relationship between the parties unless:
(a) it has obtained the prior written consent of Everclear Glass & Glazing (and subject to such conditions as Everclear Glass & Glazing may stipulate); or
(b) required by any law or a stock exchange.
and Intellectual Property
The Subcontractor must not, without Everclear Glass & Glazing's prior written approval (which may be withheld in its absolute discretion or given with such conditions as it sees fit), use any Everclear Glass & Glazing Trade Mark or Intellectual Property in any advertisement, marketing and/or promotion (in any form whether express or implied, including to indicate that the Subcontractor is a preferred supplier of Everclear Glass & Glazing), in any medium, including websites, brochures, telephone directories verbal communication, telephone on-hold messaging, business cards, clothing, signage and identification cards.
16. General obligations
16.1 Compliance with laws and standards
In providing the Services, the Subcontractor must comply with:
(a) all laws, industry standards, guidance notes and codes of practice relevant to the provision of the Services, including the Building Code of Australia and General Insurance Code of Practice.
16.2 Consultation and cooperation
The Subcontractor must consult with Everclear Glass & Glazing:
(a) if it is unsure of what is required under this Agreement; and
(b) in advance if it is unable to complete any Services or meet any deadline under the Agreement.
16.3 Increased Claims volume
In periods of increased Claims volume the Subcontractor must:
(a) subject to work in progress at the time of Everclear Glass & Glazing's request, give preference to Everclear Glass & Glazing;
(b) attend, as far as practicable, areas outside of the Supply Area to assist other subcontractors to Everclear Glass & Glazing; without charging additional costs, without consent.
(c) subject to capacity, make other resources available to Everclear Glass & Glazing; and
(d) comply with all of Everclear Glass & Glazing's other reasonable requirements.
16.4 Hazardous Materials
The Subcontractor must immediately inform both Everclear Glass & Glazing and the Customer upon discovery of any hazardous substances at the Customer's property.
16.5 Statements and representations on behalf of Everclear Glass & Glazing
The Subcontractor must not make or purport to make any representations or statements on behalf of Everclear Glass & Glazing.
16.6 Assistance in proceedings
If requested by Everclear Glass & Glazing, the Subcontractor must provide evidence about the Services to a court or tribunal and Everclear Glass & Glazing will pay the Subcontractor's reasonable out-of-pocket expenses in providing such evidence.
16.7 Relationship with other insurers
The Subcontractor must advise Everclear Glass & Glazing if another insurance company terminates any relationship it has with it or refuses to deal with it for any reason within seven days of that event.
The Subcontractor presents and warrants to Everclear Glass & Glazing and each Everclear Glass & Glazing customer that:
(a) it has full power and authority to enter into, perform and comply with this Agreement and each Service / Job Order;
(b) signing this Agreement, accepting each Service / Job Order and performing its obligations under this Agreement and each Service / Job Order will not cause the Subcontractor to be in breach of any other agreement;
(c) it will provide and use the necessary resources to supply the Services;
(d) it will be available to provide the Services 24 hours a day 7 days a week; and
(e) the Services will be provided in accordance with all applicable laws, industry standards and codes of practice, including the Building Code of Australia and General Insurance Code of Practice.
To the extent permitted by law, the Subcontractor agrees to provide the Services in a manner and to a standard consistent with:
(a) this Agreement; and
(b) all statutory obligations, including any applicable statutory warranty guarantee (irrespective of any changes in law during the term of a warranty guarantee that otherwise reduces the statutory requirement for warranty guarantees).
17.3 Manufacturer's warranty
The Subcontractor warrants that all material and parts supplied or installed by it are supplied or installed on the same terms and conditions as the applicable manufacturer's warranty.
17.4 Repair of breach
If the Subcontractor breaches any of the warranties in clause 17.1 the Subcontractor will, if required by Everclear Glass & Glazing, promptly re-perform the Services in a manner that does not breach the warranties at no additional cost to Everclear Glass & Glazing. This remedy is without prejudice to any other right Everclear Glass & Glazing may be entitled to whether at law, in equity or otherwise.
18.1 Obligation to insure
The Subcontractor must at all times during the Term of contract following the End Date hold the Required Insurance with a reputable insurer.
18.2 Certificates of currency
Within 14 days of receiving a request from Everclear Glass & Glazing, the Subcontractor will provide Everclear Glass & Glazing with certificates of currency for the Required Insurance.
The Subcontractor protects Everclear Glass & Glazing against:
(a) a breach of this Agreement;
(b) negligence, fraud, misconduct or breach of legislation;
(c) injury to, or death of, any person;
(d) damage to tangible property;
(e) the engagement of subcontractors as referred to in clause 11.2; or
(f) a breach of privacy or confidentiality obligations, whether arising under this Agreement or otherwise,
caused or contributed to by the Subcontractor, its Related Bodies Corporate or its Representatives.
This indemnity is reduced to the extent that the Loss was caused or contributed to by Those Indemnified.
If any Services performed by the Subcontractor, or parts or materials used by it in providing the Services, are defective or do not comply with the Service Levels or other standards required by this Agreement, Everclear Glass & Glazing may:
(a) require the Subcontractor to fix the defect or non-compliance at its expense using a replacement method agreed with Everclear Glass & Glazing and with minimum inconvenience to the Customer, and the Subcontractor must pay Everclear Glass & Glazing's reasonable costs;
(b) arrange for an alternate subcontractor to fix the defect or non-compliance at the Subcontractor's expense, and the Subcontractor must pay Everclear Glass & Glazing's reasonable costs (if any) on Everclear Glass & Glazing's request; and/or
(c) require the Subcontractor to pay the Customer compensation for any reasonably related loss caused to the Customer as a result of the defect or non-compliance.
21.1 Termination by Everclear Glass & Glazing
Everclear Glass & Glazing may terminate this Agreement:
(a) at any time by giving at least 60 days notice to the Subcontractor;
(b) immediately by providing written notice to the Subcontractor if the legal or beneficial ownership or control of the Subcontractor changes; or
(c) by giving 14 days notice if the Subcontractor consistently fails to meet the Service Levels.
An Everclear Glass & Glazing customer may terminate a Service / Job Order:
(a) at any time by giving at least 7 days notice to the Subcontractor;
(b) immediately by providing written notice to the Subcontractor if the legal or beneficial ownership or control of the Subcontractor changes; or
(c) immediately by providing written notice to the Subcontractor if Everclear Glass & Glazing is entitled to terminate this Agreement.
21.3 Termination by either party
An Everclear Glass & Glazing customer or the Subcontractor may immediately terminate a Service / Job Order by notice to the other party to the Service Order (Breaching Party) if:
(c) the Breaching Party is unable to perform its obligations under this Agreement for a continuous period of at least 30 days caused by Force Majeure.
21.4 Termination of Agreement or other Service Orders for breach of Service / Job Order
The Subcontractor acknowledges that if an Everclear Glass & Glazing customer is entitled to terminate a Service / Job Order pursuant to clauses 21.3(a) or 21.3(b) then:
(a) Everclear Glass & Glazing may also terminate this Agreement; and
(b) any other Everclear Glass & Glazing customer may terminate any current Service / Job Order that it has entered into with the Subcontractor,
immediately by providing written notice to the Subcontractor.
21.5 Effect of termination or expiry
On termination or expiry of this Agreement the Subcontractor must:
(a) if required by Everclear Glass & Glazing, complete the Services under any outstanding Service / Job Orders in accordance with the terms of those Service Orders;
(b) immediately cease using the Everclear Glass & Glazing Trademarks or Everclear Glass & Glazing's Intellectual Property;
(c) immediately cease referring to itself as a preferred subcontractor of Everclear Glass & Glazing;
(d) as soon as practicable, at the Subcontractor's cost, return to Everclear Glass & Glazing in a reasonable condition any property that Everclear Glass & Glazing had issued to the Subcontractor (including ID cards, signage, manuals, guidelines and other Everclear Glass & Glazing documentation); and
(e) as soon as practicable, deliver to Everclear Glass & Glazing or destroy, at Everclear Glass & Glazing's option, all Confidential Information, Personal Information and Intellectual Property of Everclear Glass & glazing.
21.6 Transfer of Services
On termination of this Agreement or a Service / Job Order, Everclear Glass & Glazing may transfer any outstanding Services under a Service / Job Order to another subcontractor. The Subcontractor must cooperate with Everclear Glass & Glazing to enable these events to occur.
21.7 Retention of rights
Termination of this Agreement or a Service / Job Order does not affect the accrued rights and remedies of either party.
Clauses 12(a), 13, 14, 15, 17.2, 18, 19, 20, 21.8 and 23 survive termination of this Agreement.
22.1 Non-performance due to Force Majeure
A party will not be liable for any failure to carry out its obligations under this Agreement to the extent that such non-performance was due to Force Majeure. For the avoidance of doubt, this clause 22 does not apply to the Subcontractor's obligation to provide Services for Claims arising from events that fall within the definition of Force Majeure.
22.2 Obligation to overcome Force Majeure
If a party's performance of its obligations are affected by Force Majeure, that party will use its best endeavours to promptly restore itself to a position where it can perform its obligations.
23.1 Notices must be in writing
All notices under or in connection with this Agreement must be in writing unless otherwise specified.
Notices must be delivered to the other party's Nominated Representative (or such other person notified from time to time):
(a) to the other party by hand; or
(b) forwarded to the other party by prepaid post, certified or registered mail or facsimile transmission,
and are deemed to be received:
(c) on the first Business Day after delivery, if delivered by hand; or
(d) three Business Days after posting if sent by prepaid mail from within Australia or seven Business Days after posting if sent by prepaid mail from outside Australia; or
(e) on the date of the sender's transmission report that confirms that the notice was transmitted in full to the correct number on that day if sent by facsimile before 5.00pm on a Business Day or otherwise the next Business Day.
This Agreement and any rights or obligations under it may not be assigned or otherwise transferred by the Subcontractor. Everclear Glass & Glazing may assign all or any part of its rights under this Agreement without consent.
Everclear Glass & Glazing may, on its own, enforce its rights under this Agreement against the Subcontractor. None of the Everclear Glass & Glazing customers will have any responsibility or liability to the Subcontractor for any of the obligations under this Agreement.
The Subcontractor agrees to comply with any dispute resolution process set out in this agreement.
23.6 Relationship of parties
The Subcontractor is an independent contractor and is not an agent of Everclear Glass & Glazing and the Subcontractor has no authority to bind Everclear Glass & Glazing or any Everclear Glass & Glazing customer by contract or otherwise. This Agreement is not intended to create a partnership, joint venture or relationship of employer and employee or principal and agent between the parties.
23.7 No Waiver
No waiver by either party of any provisions of this Agreement will amount to a continuing waiver or a waiver of any other provision of this Agreement unless made in writing and signed by the party against whom the waiver would have been enforced.
This Agreement cannot be amended, supplemented, varied, replaced or novated except in writing signed by the parties.
A provision of this Agreement that is or becomes invalid or unenforceable in any way is to be severed to the extent possible and necessary to make this Agreement enforceable.
23.10 Giving effect to this Agreement
The Subcontractor must do anything reasonably required by Everclear Glass & Glazing (including executing all documents) to give full effect to this Agreement and the transactions contemplated by it.
23.11 Entire agreement
This Agreement constitutes the entire agreement between the parties as to its subject matter, and supersedes all prior agreements, representations, negotiations and correspondence.
This Agreement may be executed in any number of counterparts.
23.13 Governing law
This Agreement is governed by the laws applicable in New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
Schedule 1 Definitions and interpretation
In this Agreement:
(a) except as set out below, all capitalised terms used in the Agreement Details have the meaning set out in the Agreement Details; and
(b) the following words have the following meanings:
Agreement means this agreement together with its schedules.
Agreement Details means the Agreement Details set out at the beginning of this document.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which the banks are open for general banking business in Sydney.
Claim means any claim made by a Customer under an insurance policy underwritten or issued by the Insurer.
Confidential Information means any information provided by one party to the other party in connection with the Agreement (including the terms of the Agreement) that is treated by the disclosing party as confidential, regardless of its form, and whether the party receiving the information becomes aware of it on or after the date of the Agreement, but does not include:
(a) information that is in the public domain; or
(b) information that is known to the receiving party independently and not through any breach of this Agreement or any other agreement by that party.
Customer means a person who holds an insurance policy issued, underwritten or under which claims are managed by any Everclear Glass & Glazing.
Estimate has the meaning set out in clause 6.3.
Excess means a contribution towards the cost of a Claim made by a Customer in accordance with the terms of the relevant insurance policy and/or claim.
Fees means the fees for the Services specified in (as applicable):
(a) item 10 of the Agreement Details;
(b) a Service Order; or
(c) quoted as part of an Estimate and accepted by Everclear Glass & Glazing in accordance with clause 6.3.
Force Majeure means an event beyond the control of a party that prevents it from exercising any of its rights or performing any of its obligations under this Agreement and including an act of God, natural disaster, accident, acts or regulations of any governmental authority, strike, lockout, an industrial dispute which is not caused by the party claiming Force Majeure, riot, civil commotion, terrorist act or war (whether declared or not).
Everclear Glass & Glazing Trade Mark means any name (or part of a name), brand, logo or trade mark used by Everclear Glass & Glazing or its Related Bodies Corporate.
Insolvency Event in relation to a party means:
(a) a step is taken to enter into an arrangement between that party and its creditors;
(b) a step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that party's assets, operations or business; or
(c) that party cannot pay its debts as they become due.
Intellectual Property means all existing and future intellectual property rights throughout the world, whether protected by statute or not, including rights in relation to any copyright, trade marks, brand, logo, designs, inventions (including patents), discoveries, algorithms or formulae, know-how, trade secrets, trade dress and get-up and domain names, moral rights (as defined in the Copyright Act 1968 (Cth)), semiconductor or circuit layout rights whether or not registrable, registered or patentable, including any right to apply for a grant or registration of any such rights and all renewals and extensions of these rights.
Loss means any loss, damage, liability, cost or expense, whether or not direct, indirect actual or contingent, including legal costs.
Personal Information has the meaning given in clause 14.
Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth).
Representative means an officer, employee, contractor, or agent of a party.
Service / Job Order means an agreement between an Everclear Glass & Glazing customer and the Subcontractor for the Subcontractor to provide Services under this Agreement, as agreed in accordance with clause 6.
Term means the period referred to in clause 3 (and includes the Initial Term and any Extended Term or Further Extended Term exercised in accordance with clause 3).
Variation has the meaning given in clause 6.6.
In this Agreement, the following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not form part of the interpretation of this Agreement;
(b) the singular includes the plural, and vice-versa;
(c) a gender reference includes all genders;
(d) if a word or phrase is defined its other grammatical forms have a corresponding meaning;
(e) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(f) a reference to a clause, schedule or appendix is a reference to a clause of, schedule or appendix to or of, this Agreement;
(g) a reference to a party to this Agreement or another agreement includes the party's successors, permitted substitutes, permitted assigns, and, where applicable, the party's legal personal representatives;
(h) a reference to an agreement is to that agreement as amended, supplemented, novated or replaced, except to the extent prohibited by that agreement;
(i) a reference to conduct includes an act, omission, statement or undertaking, whether or not in writing;
(j) a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form;
(k) a reference to any legislation is a reference to that legislation as modified or re-enacted from time to time, and includes all regulations and statutory instruments issued under it;
(l) mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included; and
(m) a reference to dollars or $ is a reference to Australian dollars.