1. These Terms and Conditions
These Terms and Conditions govern the relationship between the apartment owner (you or your) and Hickory Customer Care Pty Ltd as trustee for Hickory Customer Care Unit Trust (ABN 77 137 600 384) (Hickory) in relation to Hickory’s provision of maintenance services at the property listed in the form on this website (Property) in accordance with the selected Service Package.
2. Property owner rights & obligations
As a condition of entering into these Terms and Conditions, you and Hickory unconditionally and irrevocably acknowledge and agree that:
- the Hickory Builder’s Assurance Service is a property maintenance services and condition inspection service for properties built by Hickory and these Terms and Conditions govern those Maintenance Services;
- in addition to the rights set out in these Terms and Conditions, owners of apartments built by Hickory have rights in relation to their Property, including under:
- the implied warranties given under the Domestic Buildings Contracts Act 1995 (Vic) (DBC);
- any applicable manufacturer’s warranties that are provided in connection with the Property; and
- the consumer guarantees under the Australian Consumer Law (ACL) contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) applicable to goods or services which are provided in connection with the Property,
(the Pre-Existing Owner Rights);
- owners of apartments built by Hickory are required to comply with:
- the Hickory Owner’s Information Maintenance Manual provided to the owner of the Property at handover, including preventative maintenance measures specified in that document; and
- the terms of any applicable manufacturer’s warranty that is provided in connection with the Property,
(the Owner Obligations);
- nothing in these Terms and Conditions is intended to exclude, restrict or modify the Pre-Existing Owner Rights; and
- nothing in these Terms and Conditions is intended to exclude, restrict or modify the Owner Obligations.
3. Acceptance of terms and conditions
3.1 By clicking on the Accept check box below the registration form on this website, you:
- acknowledge that you have read and agree to be bound by these Terms and Conditions;
- warrant in favour of Hickory that you are the owner of the Property, or are otherwise authorised by the owner of the Property to enter into these Terms and Conditions in respect of the Property; and
4. Scope of Services - Inclusions and Exclusions
4.1 The Scope of Services included in the Service Package are outlined in the Hickory Builder’s Assurance Service Information and Guide, located at www.hickory.com.au/docs/hba-service-information-and-guide.pdf
4.2 The following services are excluded from the Maintenance Services:
- works that are required as a result of:
- a breach of the Owner Obligations by the Property owner or occupier:
- misuse of the Property, or other negligent or wilful act or omission of the Property owner, occupier or third party; or
- an act of God, natural disaster, fire, explosion, earthquake, water damage, flood, rain, storm, war, riot, sabotage, accident, power surge or failure, any fault or damage caused by temperature, humidity or other environmental condition;
- maintenance on any essential services (including smoke alarms, fire protection systems, electrical services) or manufactured appliances (other than air-conditioning units);
- works that are not listed in the guide at clause 4.1 of these Terms and Conditions or which cannot be carried out in the time allocated to the scheduled inspection;
- call outs to the Property at times other than scheduled inspection times agreed with Hickory;
- the cost of any replacement fittings, fixtures or parts required in connection with carrying out the Maintenance Services;
- works that are a result of your failure to allow Hickory to attend the Property at the scheduled inspection time to perform the Maintenance Services,
- works covered by a Pre-existing Owner Right.
- Any works other than Out of Scope Services set out in the Hickory Builder’s Assurance Service Information and Guide.
(clauses 4.2(a) to 4.2(h) are together and separately Out of Scope Services).
4.3 Hickory will not carry out any Out of Scope Services during scheduled times without first issuing a quote for the Out of Scope Services and obtaining your prior agreement to carry out the Out of Scope Services for the price provided in the quote.
4.4 If during the course of providing Maintenance Services at the Property, Hickory determines that works are required to be carried out at the Property and those works are covered by a Pre-Existing Owner Right, Hickory will (or will procure a third party to) carry out those works:
- at no charge;
- at a time to be agreed between Hickory and you; and
- professionally, with due care, skill and diligence and otherwise in accordance with the terms of the relevant Pre-Existing Owner Right.
5. Performance of the Maintenance Services
5.1 Maintenance Services will be provided on an annual basis/or the frequency agreed on in the Service Package you select.
5.2 In performing Maintenance Services, Hickory will:
- arrange a time with you (or a person nominated by you) for a technician to attend at the Property to perform the Maintenance Services;
- provide you with a property condition report outlining the condition of the Property, including (if applicable) any recommended Out of Scope Services (Inspection Report);
- provide the Maintenance Services professionally, with due care, skill and diligence and in accordance with these Terms and Conditions;
- use only suitably qualified technicians to perform the Maintenance Services; and
- comply with all statutes, regulations, ordinances, by-laws or requirements of any authorities which applies or may apply to work and services it performs in connection with these Terms and Conditions.
6. Requesting Out of Scope Services
6.1 If you would like Hickory to provide any Out of Scope Services:
- you must notify Hickory in writing (an email to firstname.lastname@example.org) of the services that are required (including by providing a copy of any applicable Inspection Report recommending the Out of Scope Services);
- Hickory may need to attend at the Property to assess the work that is needed. You agree to work cooperatively with Hickory to organise a time for this assessment to take place;
- Hickory will provide you with a quote for the cost to provide the Out of Scope Services (Quote) and you must confirm your acceptance of a Quote within 30 days of the date of the Quote (Confirmation); and
- Hickory will complete the work as soon as reasonably possible after receipt of your Confirmation; and
7. Your obligations
7.1 You acknowledge and agree that:
- you will provide Hickory with safe and unobstructed access to all areas of the Property and such utilities or equipment as reasonably specified by Hickory; and
- you will work cooperatively with Hickory to allow Hickory to perform the Maintenance Services, including by arranging the Inspection or attendance, ensuring the Property is accessible by Hickory at the agreed inspection or attendance times and being reasonably available to consult with Hickory concerning the Property.
- you cancel any Inspection or other agreed attendance at the Property by Hickory within 24 hours of the scheduled Inspection or attendance time; or
- a Property is not accessible by Hickory at the scheduled Inspection or attendance time,
Hickory may at its discretion charge a cancellation fee of AUD$120.00 to cover the cost and expense incurred by Hickory as a result of the cancellation or inability to access the Property.
8. Fees and Payment
8.1 You will pay Hickory:
- the fees for the Maintenance Services (Maintenance Service Fees) in the amounts, and at the times, set out in the Service Package;
- any charges for Out of Scope Services in accordance with any Quote provided by Hickory and approved by you;
- any cancellation fees charges by Hickory pursuant to clause 7.2, by electronic funds transfer to the account notified by Hickory to you within 30 days of receipt of a valid tax invoice from Hickory.
8.2 Goods and Services Tax (GST) is payable as set out in any tax invoice given by Hickory.
9. Term and Termination
9.1 These Terms and Conditions commence on the day that you accept these Terms and Conditions and, subject to the provisions of these Terms and Conditions, will continue for 12 months from that date (Initial Term).
9.2 No later than 45 days before the expiry of the Initial Term, Hickory will give you notice (Renewal Notice) of its intention to renew these Terms and Conditions for a further twelve-month period (Renewal Term).
9.3 Unless you notify Hickory in writing (an email to email@example.com) within 15 days of receipt of Hickory’s Renewal Notice that you do not wish to renew the Initial Term for a Renewal Term, these Terms and Conditions will automatically renew at the end of the Initial Term for a Renewal Term on the same terms and conditions.
9.4 The renewal process described in clauses 9.2 and 9.3 will apply in and to each Renewal Term except that in a Renewal Term, references to Initial Term in clauses 9.2 and 9.3 will be deemed to be replaced with the words Renewal Term in effect.
9.5 Either party may terminate these Terms and Conditions immediately on written notice to the other party if the other party:
- is insolvent, bankrupt or unable to pay their debts as and when they fall due;
- defaults in relation to any of its obligations under these Terms and Conditions and in the case of a default which is capable of remedy, the defaulting party has not remedied the default within thirty (30) days (or such other reasonable period in the circumstances) of being requested in writing by the other party to do so.
9.6 You may otherwise terminate these Terms and Conditions during the Initial Term or any Renewal Term if you sell the Property, or if you cease to manage the Property on behalf of the Property’s owner. If these Terms and Conditions are terminated in accordance with this clause 9.6, Hickory will provide you with a pro rata refund of any Maintenance Service Fees paid in advance that are applicable to the unexpired balance of the Initial or Renewal Term.
10. Limitation of liability and indemnity
10.1 Notwithstanding anything else in these Terms and Conditions, Hickory’s maximum aggregate liability to you:
- for failure to comply with a consumer guarantee under the ACL in respect of the supply of Maintenance Services is limited, at Hickory’s sole discretion, to:
- resupplying the services; or
- the costs of resupplying the services; and
- for loss or damage suffered by you or the Property owner (including Property damage) as a result of any act or omission of Hickory or its technicians (including negligence) will under no circumstances exceed the amount paid by you to Hickory under these Terms and Conditions.
10.2 To the extent permitted by law:
- Hickory has no liability to you or in respect of the Property as a result of the Property owner’s or occupier’s breach of, or failure to comply with, the Owner Obligations;
- Hickory’s liability under these Terms and Conditions will be reduced proportionately to the extent that any act, omission, neglect or default on the part of you or any other person contributed to the relevant liability (including as a result of a breach of, or failure to comply with, the Owner Obligations); and
- Hickory will not be liable to you or any other party for special, indirect or consequential loss or damage, loss of profits, loss of revenue, loss of income, loss of use, loss of business opportunity, loss of production, loss of anticipated savings, pure economic loss or loss of or damage to reputation or goodwill, howsoever caused.
11. Assignment or subcontracting
11.1 Hickory may subcontract all or part of the provision of the Maintenance Services to any third party.
11.2 You may not assign or otherwise transfer these Terms and Conditions or any of your rights or obligations under these Terms and Conditions without Hickory’s prior written consent. Hickory may assign any of its rights or obligations under these Terms and Conditions on written notice to you.
13.1 Hickory will not be liable for any failure or delay in its performance under these Terms and Conditions that is caused by any circumstances beyond its reasonable control, including, but not limited to, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, shortage of supply of materials, governmental act or failure, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of carriers, vendors or suppliers, equipment failures or transportation difficulties.
13.2 These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria, Australia, and you agree to the exclusive jurisdiction of the courts of or in the State of Victoria and the courts of appeal therefrom.
13.3 These Terms and Conditions set out the entire agreement and understanding between you and Hickory in connection with the provision of the Maintenance Services, and supersedes all prior agreements, understandings, representations and warranties, whether express or implied.
13.4 Each party agrees to do all things that may be necessary or desirable to give full effect to every part of these Terms and Conditions if asked in writing by another party to do so.
13.6 If any provision of these Terms and Conditions are invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provision will not be affected and such invalid, illegal or unenforceable provision is to be severed from these Terms and Conditions.
14. Special Conditions
These Terms and Conditions are subject to any special conditions that are agreed in writing between you and Hickory. If there is any inconsistency between these Terms and Conditions and the special conditions, the special conditions prevail.