Stork Cooperheat Australia & New Zealand Standard Terms of Contracting

1. DICTIONARY

“Acceptance” means any communication and or action by or on behalf of the Client by which Cooperheat’s Special Representative formed the opinion that the Client was accepting the Offer.

"Contract" means the agreement, as expressed in the Contract Documents, which arose between the Client and Cooperheat as a result of the Acceptance by the Client of the Offer.

"Contract Documents" comprise the Offer and this Standard Terms of Contracting document, and no other document whatsoever.

"Contract Sum" means the amount of money as is determined by the Superintendent, in his absolute and unfettered discretion as an independent certifier, to be payable to Cooperheat in respect of or associated with the Work.

"Client" means the entity identified by Cooperheat’s Special Representative as the second party to the Contract, as well as every successor and or assign thereof.

"Cooperheat" means Stork Cooperheat Australia Pty Ltd (ACN 102 981 902), the first party to the Contract, as well as every successor and or assign thereof.

"Direction" includes any demand, order, instruction, requirement, request or permission and "Direct", "Directed" and Directing" have correlative meanings.

"Dispute" includes any disagreement or difference involving the Client and Cooperheat in respect of and or associated in any way with the Contract or the Work.

“Offer” means the document identified by Cooperheat as the written offer by it to the Client to provide services and or supply materials to the Client.

“Parties” means Cooperheat and the Client.

"Proven by the Client" means that the Client bears the onus of proving the relevant fact matter circumstance or thing upon the balance of probabilities and by relevant and probative evidence.

"Work" means those goods and or services which Cooperheat's Special Representative alleges are to be supplied and or have been supplied by or on behalf of Cooperheat pursuant to the Contract.

2. NATURE OF CONTRACT

2.1    The provisions of the Contract Documents when interpreted and construed, singularly or in conjunction with another or others or in the aggregate are intended by the Parties to be and to operate as a code and to evidence an agreement which is in both substance and in form, a legally binding and enforceable contract, and in that regard a commercial agreement which requires Cooperheat to supply goods and or services, to the extent and in the manner and at the times as Cooperheat's Special Representative shall determine to be appropriate in connection with the intended performance by or on behalf of Cooperheat of the Work, and which requires the Client to ensure that payment is made at the time and place advised in writing to a Client's Representative by Cooperheat's Special Representative from time to time of the Contract Sum, and further, the said requirements as to the performance by the Client are not waived altered amended or lost to any extent or in any way by virtue of the fact that Cooperheat's Special Representative may from time to time agree to vary alter or amend the time or place for payment thereof.
2.2    The Client undertakes to do everything within its power to give effect to and to comply with and to fulfil the terms of the Contract at all times and in all respects.
2.3    Each and every possible cost or expense to the Client of complying with the various provisions of the Contract Documents is acknowledged by the Client to be incapable of constituting or forming any part of any claim whatsoever, whether pursuant to the Contract or otherwise, by or on behalf of the Client and against Cooperheat or any servant or agent of Cooperheat.
2.4    The Parties acknowledge that it is their respective express intention that every possible supply by or on behalf of Cooperheat of goods and or services in respect of the Work will be made pursuant to the Contract, and all other possibilities for any such supply are expressly excluded.
2.5    The Parties each declare that by virtue of their deemed, presumed or physical execution of the Contract they have for their respective parts endorsed their approval and acceptance of the substance, form, words, phrases and spirit of the Contract Documents.

3. CONSTRUCTION AND INTERPRETATION

3.1    The Contract shall be governed by and construed and interpreted in accordance with the laws for the time being in force in the State of New South Wales. The Parties submit to the original and appellate jurisdiction of the various Courts of New South Wales and the Commonwealth of Australia for the purpose of adjudicating any dispute which may arise and any subsequent appeal.
3.2    If it becomes necessary to determine the meaning of, or the extent of the operation and effect of, any provision of the Contract Documents or any combination thereof, then in every instance every provision and every combination of provisions shall be understood construed and interpreted to give effect first and foremost absolutely and always to the several provisions of clause 2. NATURE OF CONTRACT herein in preference to any other provision or to any combination of other provisions.
3.3    To the extent of any inconsistency between the law of New South Wales and the law of the place where the Work is being performed, then, in respect only of the performance of the Work, the law of the place where the Work is being performed shall apply.
3.4    Headings shall not be used or considered in connection with the construction and interpretation of any of provision of the Contract Documents.
3.5    Words or phrases which import the singular are deemed to also import the plural and words or phrases which import the plural are deemed to also import the singular, and words or phrases which import a particular gender import every gender and no particular gender, and a reference to a person is equally a reference to a firm or incorporated entity.
3.6    In each instance in which any of the terms "and" "and or" and "or" occur in the Contract Documents each of those terms is to be read and construed and interpreted as conjunctive and in the alternative as disjunctive and in the further alternative as both conjunctive and disjunctive without excluding any particular possibility or combination of possibilities.
3.7    The fact that the Client and its servants and agents may be subject to duties and obligations by virtue of the operation and effect of the Contract shall not give rise to any express or implied limitation upon the application or effect of any higher or more onerous duty or obligation which may be imposed upon the Client and or its servants and agents.
3.8    The fact that Cooperheat and its servants and agents may be subject to duties and obligations by virtue of the operation and effect of the Contract is intended to operate as an express limitation upon the application and effect of any higher or more onerous duty or obligation which could be imposed upon Cooperheat and or its servants and agents.
3.9    Time is of the essence in respect of each and every one of the duties requirements and or obligations imposed upon the Client and every Client's Representative in connection with the Contract.
3.10    Any acquiescence, lack of insistence, relaxation or waiver by or on behalf of Cooperheat of any requirement duty or obligation upon the Client or upon any person associated with the Client including any legal representative of the Client, and arising under or to any extent in connection with the Contract, including litigation in respect of any Dispute, is incapable of constituting any waiver or estoppel at common law or in equity by or in respect of Cooperheat.
3.11    For all of the purposes of the Contract including any purpose which is incidental thereto, the Parties each hold themselves bound by the single, several and cumulative provisions and obligations of, and duties and requirements imposed by, the Contract Documents, and no reference shall be made to, and no rights obligations duties or requirements shall arise from or accrue to the Client from or incidental to any written or oral or partly written and partly oral communication by or on behalf of the Client or Cooperheat which communication occurred prior to the date of the Offer.
3.12    For the purposes of interpretation and construction of the singular several and cumulative provisions of the Contract Documents, those documents shall be read and construed as a whole and the various provisions thereof shall be taken as mutually explanatory each of the other.
3.13    Notwithstanding the effect of such interpretation and construction as aforesaid, in the event of any ambiguity, discrepancy or inconsistency between the various provisions of the Contract Documents, and only then, and only in the further event of any conflict or uncertainty arising there from and for determination as a result thereof, that conflict or uncertainty is to be resolved by preferring the interpretation and construction which naturally follows from a consideration of each of the provisions of the Contract Documents but in the following descending order of importance; i.e., in the first instance by considering the requirements of the Statute Law of New South Wales in preference to the provisions of any other document; and in the second instance the provisions of the Terms of Agreement document in preference to all other documents except the Statute Law of New South Wales.
3.14    In the event of any word phrase or other provision of the Contract Documents being determined to be illegal, void, voidable or otherwise unenforceable by virtue of the operation of any rule of common law statute law or equity, then so much of that provision and no more as is determined to be so illegal void voidable or otherwise unenforceable is to thereupon be severed from the remainder of the Contract Documents without in any way affecting the validity legality and enforceability of the said remainder.
3.15    The Client acknowledges the fact of, and the adequacy and sufficiency of, the opportunity afforded to it and to its servants and agents to examine and study the Contract Documents in detail, and to thereby and as a result thereof have become thoroughly familiar with each and every one of the provisions, requirements, obligations, duties and responsibilities of and associated with the Contract as may be relevant to or may bear upon the Client and or upon any person associated with the Client, and the Client further acknowledges that by virtue of its acceptance of the Offer, the Client is and remains absolutely bound by, and agrees to observe perform and comply in every detail with the terms of the Contract.

4. WORK AND MATERIALS

4.1    Cooperheat will endeavour to perform the Work in accordance with the requirements of the law applicable at the site of the Work, including the requirements of all Statutory Authorities, all Acts, Ordinances, Regulations, By-laws, Orders and Proclamations.
4.2    Where Cooperheat is or becomes entitled to use any patent registered design trademark tradename or the like in connection with the Work, then Cooperheat will allow the Client to have the benefit of the said patent etc. in connection with the Work, provided always that all monies, to which Cooperheat alleges it is entitled in respect of the Work have been paid to Cooperheat.

5. INSURANCE

5.1    Cooperheat expressly indemnifies and undertakes to continue to indemnify and to save and hold harmless the Client in respect of any liability relating to workers' compensation by reason of the injury to or death of any employee of Cooperheat.
5.2    The Client expressly indemnifies and undertakes to continue to indemnify and to save and hold Cooperheat harmless in respect of each and every possible loss or damage no matter howsoever arising in connection with the Contract or any part thereof and to anything incidental to or connected in any way therewith including any goods and or services supplied by or on behalf of Cooperheat in connection with the performance or the attempted performance of the Work or associated work in connection with the Work, and in respect of each and every liability action suit proceeding claim demand loss cost or expense which may or does arise from or be incurred by or as a result of any act of the Client or act of any of its servants or agents whether any such act was or is by way of any misfeasance or nonfeasance, and no matter whether the said liability etc arises at common law or in equity or by statute, and further, notwithstanding that any such said liability etc may have been due in part to or flowed from or have been caused by any misfeasance or nonfeasance of Cooperheat or of any person on behalf of Cooperheat.
5.3    In the event of Cooperheat and or of any person associated with Cooperheat being affected in any way or to any extent as a direct or indirect consequence of any litigious natured proceedings being brought or threatened against the Client, the Client undertakes to forthwith do every thing and to take every action within its power to remove or mitigate the said affect.
5.4    During the currency of the Contract and for a period of three years thereafter, the Client undertakes to provide Cooperheat and its legal representatives with unrestricted access at all reasonable times to all written records, including all notes, computer print outs, diaries, personnel books, instructions, plans, drawings, receipts, vouchers, time sheets and invoices, as have any connection with the Contract and or the Work and as are in the possession or power of the Client, and Cooperheat shall be absolutely entitled to make and retain any copies thereof, and the Client waives any legal professional privilege which may accrue to it in respect thereof.
5.5    In every instance where Cooperheat or any person associated with Cooperheat has manufactured and or has otherwise procured any goods in respect of the Contract, then the Client shall be deemed to have taken delivery of the same and shall thereafter keep retain hold secure and store them, without having any entitlement to ownership of any such goods, and shall be and remain absolutely responsible to Cooperheat on account of any loss of or damage of whatever nature to any of them.

6. REPRESENTATIVES

6.1    The person most recently nominated in writing by Cooperheat by reference to this subclause as Cooperheat's Special Representative shall be entitled but not required to exercise, for the purposes of the Contract, all of the powers of Cooperheat itself, and unless and until more recently nominated Cooperheat's Special Representative shall be Mr Tony McAnulty.
6.2    The Parties hereby expressly indemnify and undertake to continue to indemnify and to save and hold Cooperheat's Special Representative harmless in respect of any liability related to or associated with the exercise, attempted exercise or purported exercise by Cooperheat's Special Representative of any power duty or obligation in connection with the Contract.
6.3    The person most recently nominated in writing by Cooperheat by reference to this subclause shall be the Superintendent, and until more recently nominated the Superintendent shall be Mr Tony McAnulty.
6.4    The Parties hereby expressly indemnify and undertake to continue to indemnify and to save and hold the Superintendent harmless in respect of any liability related to or associated with the exercise, attempted exercise or purported exercise by the Superintendent of any power duty or obligation in connection with the Contract.
6.5    Each servant or agent of Cooperheat who is in charge of the Work from time to time on behalf of Cooperheat is deemed to be a Cooperheat Representative, and thereby to be entitled to receive consider and act in the name of Cooperheat upon any Direction provided by any Client's Representative, provided always that in each and every case the said Cooperheat Representative shall have no authority whatsoever to incur any liability for or on behalf of Cooperheat nor any authority to waive vary alter or amend any term of the Contract whether orally or by writing.
6.6    Every person who appears to Cooperheat's Special Representative or to a Cooperheat Representative to be the servant or agent of the Client shall be conclusively presumed to be and to have been duly and effectively appointed by the Client as a Client's Representative, except that any person who is Cooperheat’s Special Representative, or a Cooperheat Representative, or a Superintendent is deemed incapable of also being a Client's Representative.
6.7    The Client acknowledges that every Client's Representative has the express authority of the Client to exercise all of the powers of the Client itself, including the power to Direct Cooperheat in respect of any increase or decrease in or to the nature quality composition or extent of the Work, and to that extent, the acts and or omissions of each and every Client's Representative shall be conclusively presumed to be the acts and omissions of the Client.

7. SECURITY

7.1    The Client undertakes to provide security to Cooperheat in the amount and at the time and place nominated in any Direction to that effect as given by Cooperheat's Special Representative. Any such security may at the election of the Client be provided by way of an unconditional bank guarantee in a form approved in writing by Cooperheat’s Special Representative and given by an Australian bank, and otherwise shall be provided by a cheque drawn on an Australian bank.
7.2    Cooperheat shall be entitled to have recourse to and to use any such security for any reason whatsoever, including in reduction of any part of the Contract Sum, and Cooperheat shall be absolutely and unconditionally entitled to any interest accruing to or earned upon any such security and neither Cooperheat nor any person associated with Cooperheat shall be required to account to the Client or any person associated with the Client or to any other person in respect thereof.

8. EXTRAS AND VARIATIONS

Cooperheat may, at any time, in its unfettered discretion determine to vary alter amend or to increase or decrease the nature quality composition or extent of the Work, and further may likewise perform any extra work or supply any additional goods or services associated with the Work, whether for the purpose of complying or attempting to comply with any Direction by a Client's Representative or otherwise, and the Client acknowledges that all goods and or services supplied by or on behalf of Cooperheat in respect of or associated with the Work are to be supplied pursuant to the Contract.

9. DEFAULT

9.1    Where it is Proven by the Client that Cooperheat has executed a Deed of Assignment or Deed of Arrangement or has entered into a composition or other arrangement with its creditors or has gone into liquidation other than by way of a voluntary winding up by its members for the purpose of reconstruction or amalgamation, and not otherwise, then the Client shall be entitled to determine the Contract.
9.2    If Cooperheat's Special Representative forms the opinion that the Client is or has been in breach of any obligation upon it and arising in or in connection with the Contract, then Cooperheat may forthwith following Cooperheat's Special Representative forming the said opinion, determine the Contract.
9.3    In the event of Cooperheat acting to determine the Contract as aforesaid then Cooperheat shall thereupon become entitled to take such action or make such arrangements as it deems necessary for securing any portion of the Contract Sum as Cooperheat shall in its absolute and unfettered discretion then and thereafter determine to be outstanding and in that regard the Client expressly authorises Cooperheat and its servants and agents to take and retain possession of any goods, including any buildings, plant, tools, equipment or other things as appear to any Cooperheat Representative to be the property of the Client, and the Client expressly waives any and all rights to compensation as either a direct or indirect result of any such action by or on behalf of Cooperheat.
9.4    Any and all costs expenses charges and the like incurred by or on behalf of Cooperheat by reason of the exercise of any of the options as aforesaid, shall, immediately upon it being incurred by or on behalf of Cooperheat, become a debt forthwith due and owing by the Client to Cooperheat, and the said debt may be recovered by Cooperheat by virtue of the sale by private treaty or otherwise of any of the said goods referred to above.

10. NOTICES AND FEES

10.1    Any Direction given by Cooperheat’s Special Representative or a Cooperheat Representative in connection with the Contract shall be deemed to be and to have been duly properly and adequately given to the person or persons to whom it is addressed or otherwise intended to be given if; it was given orally to that person or to any of those persons; or if the writing was handed to the person or those persons, or if the writing was sent by prepaid ordinary post addressed to the person or to those persons at any address which the person giving the notice determined to be an appropriate address or the writing was sent by facsimile if it was transmitted to a facsimile number which that person determined to be an appropriate facsimile number. And every such Direction shall be deemed to have been received and understood by the person or persons to whom it was addressed or otherwise intended to be given immediately upon it being so sent or transmitted.
10.2    Any Direction whether oral or partly oral and partly in writing and given by the Client or by any person on behalf of the Client pursuant to or in connection with the Contract shall be deemed to be and to have been duly properly and adequately given to that person or those persons to whom it was intended to be given, if and only if, it is Proven by the Client that the said Direction was in fact received and understood by the person or persons to whom it was addressed.
10.3    Notwithstanding that Cooperheat is entitled to every benefit which may arise as a result of any oral or written communication on behalf of Cooperheat with any person on behalf of the Client, Cooperheat cannot be adversely bound and cannot have its rights adversely affected except by a written communication by Cooperheat's Special Representative with a Client's Representative.
10.4    All communication associated with the Contract shall be in English.
10.5    The Client acknowledges that it bears the sole and absolute responsibility for the payment of all fees and for obtaining all consents, approvals and certificates of whatever nature that are in any way connected or associated with or incidental to the Work.

11. DISPUTES

In the event that a Dispute shall exist between Cooperheat and the Client, then the party alleging the Dispute may notify the other party of the nature and detail of the Dispute, and thereafter the Client undertakes to make every reasonable effort to resolve the Dispute by negotiation with Cooperheat’s Special Representative, notwithstanding that the Dispute may be or become the subject of litigation.

12. PROOF

12.1    The Client acknowledges a sworn statement such as an affidavit by Cooperheat's Special Representative or any Cooperheat Representative deposing to the fact that a Direction was given by or on behalf of the Client to have Cooperheat and or some person on behalf of Cooperheat carry out or perform the Work, will constitute conclusive proof that such a Direction was so given for the purposes of conclusively establishing Acceptance of the Offer.
12.2    Where it is alleged by Cooperheat's Special Representative or by a Cooperheat Representative and in connection with the Contract including any allegation made in or in respect of any litigation or like proceeding associated with the Contract, that a Client's Representative has had any oral communication with Cooperheat's Special Representative or with any Cooperheat Representative, then the facts matters and circumstances so alleged and which constitute the substance of the said oral communication, shall be accepted as having been conclusively proved unless and until otherwise Proven by the Client.
12.3    Where any payment is alleged by or on behalf of the Client to have been made by or on behalf of the Client to Cooperheat in connection with the Contract, the said allegation is deemed inconclusive unless Cooperheat acknowledges that the alleged payment was duly and properly made or until the alleged payment is Proven by the Client to have been duly and properly made.

13. CONFIDENTIALITY

Neither the Client nor its servants or agents shall disclose to any person other than Cooperheat's Special Representative or the Superintendent the substance text or details of the Contract Documents or of any other document or drawing which has been provided to the Client or its servants or agents by or on behalf of Cooperheat in connection with the Contract, except that each Cooperheat Representative and each of the servants and agents of the Client are expressly permitted to be informed of and to know so much and no more of the substance etc as aforesaid as is reasonably necessary for them to give effect to the various provisions of the Contract.

 

Stork Cooperheat Australia & New Zealand Standard Terms of Contracting 11.5.05

COPYRIGHT in the Contract Documents subsists in Martin G. Harris, Barrister-at-law ("the Author"). Other than for the purposes of and subject to the conditions prescribed under the Copyright Act no part of these documents may be copied or otherwise dealt with without the prior written permission of the Author. ANY BREACH OF THE AUTHOR'S COPYRIGHT IN THESE DOCUMENTS WHICH COMES TO THE AUTHOR'S ATTENTION WILL RESULT IN PROSECUTION OF THE RESPONSIBLE PERSONS TO THE FULL EXTENT PERMITTED BY LAW.