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General Conditions of Contract
for
Minor Works
(Purchase Order)
CONTENTS
1
Interpretation.......................................................................................................................................3
2
The Contract........................................................................................................................................5
3
Performance of Work..........................................................................................................................6
4
Administration ....................................................................................................................................7
5
Provision of the Site............................................................................................................................7
6
Separate contractors ............................................................................................................................8
7
Care of the Work.................................................................................................................................9
8
Releases and indemnities ....................................................................................................................9
9
Latent conditions...............................................................................................................................10
10
Non conforming work.......................................................................................................................10
11
Insurance ...........................................................................................................................................11
12
Variations..........................................................................................................................................13
13
Suspension of Work ..........................................................................................................................14
14
Practical Completion and Final Certificate .......................................................................................14
15
Extensions of time.............................................................................................................................15
16
Liquidated damages ..........................................................................................................................16
17
Price and payment .............................................................................................................................17
18
Security .............................................................................................................................................18
19
Defects liability period......................................................................................................................19
20
Confidentiality and media releases ...................................................................................................19
21
Goods and services tax......................................................................................................................20
22
Notices ..............................................................................................................................................21
23
Disputes.............................................................................................................................................22
24
Miscellaneous....................................................................................................................................23
25
Default, insolvency and termination .................................................................................................23
26
Occupational health and safety .........................................................................................................24
27
Security of payment ..........................................................................................................................25
28
Proportionate liability .......................................................................................................................25
29
Limitation of Liability.......................................................................................................................26
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1
Interpretation
1.1
In the Contract:
Australian Standard means a standard published by Standards Australia Limited (ABN 85 087
326 690).
Authority means all persons and government bodies, who or which, by any statute, regulation,
by-law, ordinance order or proclamation of any government (federal, state or local) have
jurisdiction over the Work or the Site.
BlueScope Steel Standards means all standards published by the Principal or its Related
Entities which relate to the Work and which the Principal has provided to the Contractor in
connection with the Contract.
Business Day means any day other than a Saturday, Sunday, rostered day off or public holiday
at the Site.
Contract Commencement Date means the date that the Contract commences and is the date so
specified in the Purchase Order.
Contract means the agreement between the Principal and the Contractor to perform the Work
as evidenced by the Purchase Order issued by the Principal and comprising the documents listed
in the Purchase Order, including these General Conditions of Contract for Minor Works.
Contractor means the party to whom the Purchase Order is addressed.
Contractors Debts Act means the Contractors Debts Act 1997 (NSW).
Contract Sum means either:
(a)
the lump sum specified in the Purchase Order; or
(b)
if the Purchase Order does not specify a lump sum, an amount ascertained by
multiplying the Rates by the quantity (as measured by the Principal’s Representative)
of each item of work actually carried out by the Contractor in accordance with the
Contract.
Corporations Act is the Corporations Act 2001 (Cth).
Date for Practical Completion means the date so specified in the Contract as extended under
Clause 15 or agreed or decided in litigation or other dispute resolution process undertaken as
contemplated by Clause 23.
Date of Practical Completion means the date certified under Clause 14.4.
Defects Liability Period means the period described in Clause 19.1.
Entitlement means an entitlement of the Contractor to:
(a)
an extension of time;
(b)
a declaration that time is at large;
(c)
any adjustment to the Contract Sum or valuation under Clause 17.2;
(d)
recover any loss, cost, damage or expense of any kind arising:
(i)
under the Contract; or
(ii)
out of or in connection with the performance of the Work (including a quantum
meruit).
Final Certificate means the certificate to be issued under Clause 14.8.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and related Acts,
and any terms used in the Contract (unless the context otherwise requires) which are defined in
the GST Act are taken to have the meaning as defined in the GST Act.
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Indemnified Parties are the Principal, the Principal’s Representative and their respective
officers, employees and agents.
Insolvency Event means, with respect to the Contractor, that:
(a)
it is (or states that it is) an insolvent under administration or insolvent (each as defined
in the Corporations Act); or
(b)
it has a controller appointed, is in liquidation, in provisional liquidation, under
administration or wound up or has had a receiver appointed to any part of its property;
or
(c)
it is subject to any arrangement, assignment, moratorium or composition, protected
from creditors under any statute or dissolved (in each case, other than to carry out a
reconstruction or amalgamation while solvent on terms approved by the Principal); or
(d)
an application or order has been made (and, in the case of an application, it is not
stayed, withdrawn or dismissed within twenty-one (21) Business Days), resolution
passed, proposal put forward, or any other action taken, in each case in connection
with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
or
(e)
it is taken (under section 459F(1) of the Corporations Act) to have failed to comply
with a statutory demand; or
(f)
it is the subject of an event described in section 459C(2)(b) or section 585 of the
Corporations Act (or it makes a statement from which the Principal reasonably
deduces it is so subject); or
(g)
it is otherwise unable to pay its debts when they fall due; or
(h)
something having a substantially similar effect to any of (a) to (g) happens in
connection with the Contractor under the law of any jurisdiction.
OHS Requirements mean the requirements of any legislation or advisory standard relating to
occupational or workplace health and safety with which the Contractor or the Work must
comply.
Practical Completion means that stage in the execution of the Work when the Contractor has
completed all of the Work except for minor omissions or minor defects which do not prevent
the Work from being reasonably capable of use for its intended purpose, and the Contractor has
made good the Site and its surroundings.
Principal means the party so identified in the Contract.
Principal’s Representative means the representative of the Principal named in the Contract or
his replacement notified in writing to the Contractor by the Principal.
Purchase Order means the Principal’s order for the Work, which is the Principal’s acceptance
of the Contractor’s offer and/or tender to perform the Work.
Rates mean the rates as specified in the Contract.
Related Entity means any related body corporate as defined in the Corporations Act.
Security of Payment Act means the Building and Construction Industry Security of Payment
Act 1999 (NSW).
Security of Payment Act means the Building and Construction Industry Security of Payment
Act 1999 (NSW).
Site means the area so described in the Technical Specification.
Site Requirements means the requirements relating to working on and around the Site as
specified in the Contract.
Technical Specification means the technical specification specified in the Contract.
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Valid Tax Invoice means an invoice, which complies with the GST Act in relation to the
production and form of tax invoices for GST purposes.
Variation has the meaning given to it in Clause 12.1.
Work means all of the work to be performed by the Contractor under the Contract including the
work described in the Technical Specification and any Variation, rectification or replacement
work.
1.2
2
In the Contract, a reference to:
(a)
the singular includes a reference to the plural and vice versa;
(b)
includes or including means includes or including without limitation;
(c)
a person includes a reference to a corporation, partnership and a body corporate;
(d)
another grammatical form of a defined word or expression has a corresponding
meaning;
(e)
a code or standard includes a reference to that code or standard as amended,
rectified or replaced from time to time;
(f)
any legislation or legislative provision includes any statutory modification or reenactment of, or legislative provision substituted for, and any subordinated
legislation issued under, that legislation or legislative provision;
(g)
BlueScope Steel must be read as if it is a reference to the Principal;
(h)
$, AUD or dollar is to the lawful currency of the Commonwealth of Australia;
(i)
parts, Clauses, schedules, exhibits and annexures refer to them of, in and to the
Contract;
(j)
a court is to an Australian court;
(k)
a party is to a party to the Contract;
(l)
any party includes that party’s executors, administrators, substitutes, successors
and permitted assigns; and
(m)
a subcontractor includes a consultant or supplier.
1.3
Headings of Clauses must not be used in the interpretation of the Contract. Words in
square brackets must not be used in the interpretation of the Contract.
1.4
If any of the Work has been performed by the Contractor prior to execution of the
Contract by the parties, that Work will be subject to the terms of the Contract.
1.5
In the Technical Specification, wherever the imperative form of a verb is used alone
without it being prefaced by the words “the Contractor must”, those words (unless the
context otherwise requires) must be read to be included as prefacing that verb.
The Contract
2.1
The Contract supersedes all previous communications and negotiations (whether oral
or written) between the Contractor and the Principal in relation to the Work and
constitutes the entire terms of the agreement between the parties in relation to the
Work.
2.2
The documents comprising the Contract are mutually explanatory and anything
contained in one but not in another must be treated as if contained in all.
2.3
The Contractor agrees that these General Conditions of Contract will be deemed to
form part of the Contract.
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2.4
3
The Contractor must not assign or encumber or transfer the Contract or any payment
or benefit to be provided pursuant to it.
Performance of Work
3.1
3.2
3.3
The Contractor agrees to, in accordance with and subject to the terms of the Contract:
(a)
perform the Work;
(b)
supply all materials and do all things incidental to the satisfactory performance
and completion of the Work (whether or not they are expressly provided for in
the Contract) and the Contractor will have no Entitlement as a consequence of
supplying all materials and doing all things incidental to the satisfactory
performance and completion of the Work; and
(c)
perform the Work to the satisfaction of the Principal in a good, proper and
workmanlike manner and to the standard of professional care, skill, judgment
and diligence expected of a competent and experienced contractor experienced
in performing work of the same or similar nature.
The Contractor must perform the Work so that at Practical Completion:
(a)
it will be to the reasonable satisfaction of the Principal’s Representative, in
accordance with the Contract; and
(b)
to the extent that the Contractor designs any parts of the Work, those parts will
be fit for their intended purpose.
The Contractor must:
(a)
comply with the provisions of all acts of parliament, ordinances, regulations and
by-laws and lawful requirements of all Authorities for the time being in force
and affecting or in any way relating to the Site or the Work;
(b)
obtain all permits and pay all fees required for the performance of the Work;
and
(c)
comply with the requirements of the Building Code of Australia and all relevant
BlueScope Steel Standards and Australian Standards (unless there are more
stringent provisions in the Contract).
3.4
The goods and materials incorporated into the Work must be new, free from defects,
free from liens and encumbrances and, unless specified by brand name in the
Technical Specification, be of a quality and type appropriate to the intended use of the
Work.
3.5
In respect of any materials, machinery or equipment to be supplied by the Contractor
in connection with the Contract, the Principal’s Representative may direct the
Contractor to supply particulars of the mode and place of manufacture, the source of
supply, the performance capacities and other related information including such
information as may be required to demonstrate compliance with OHS Requirements
relating to the plant or material.
3.6
Where the Contractor considers that there is any ambiguity or discrepancy in or
between the documents comprising the Contract, it must promptly advise the
Principal’s Representative in writing, who will give the Contractor a direction as to the
interpretation to be followed.
3.7
The Contractor must not subcontract any part of the Work without the prior written
approval of the Principal’s Representative. The Contractor will:
(a)
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supervise and manage them;
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5
(b)
be liable for the acts and omissions of subcontractors as if they were the acts
and omissions of the Contractor; and
(c)
not be relieved of any of its obligations or liabilities under the Contract by
subcontracting the Work.
3.8
The Contractor may only work during the working hours and on the days identified in
the Technical Specification unless the Principal’s Representative agrees otherwise in
writing.
3.9
The Contractor must comply with the requirements relating to working on the Site and
relating to the environment which are contained in the Contract, including the Site
Requirements.
3.10
Any things of value or archaeological or special interest found on or in the Site, as
between the parties, are the property of the Principal.
3.11
The Contractor must ensure that, whilst performing its obligations under the Contract,
it does not infringe any patent, registered design, trademark or name, copyright or
other protected right.
Administration
4.1
In performing all its functions under the Contract, the Principal’s Representative is the
agent of the Principal (and is not an independent certifier, assessor or valuer).
4.2
The Principal’s Representative may delegate any power or duty of the Principal’s
Representative by notice in writing to the Contractor.
4.3
The Principal’s Representative may issue directions relating to any aspect of the
performance of the Work including matters expressly made the subject of directions
in the Contract.
4.4
The Contractor must comply with all directions (which may be given orally) given by
the Principal’s Representative in accordance with the Contract within the time
specified in the direction or, if no time is specified, promptly.
4.5
The Contractor must keep the Principal’s Representative informed of the progress of
the Work.
4.6
At all times while the Work is being performed on the Site, the Contractor must have a
representative on the Site who has the authority to accept instructions from the
Principal..
4.7
If directed by the Principal’s Representative, the Contractor must attend any meetings
to discuss any aspect of the Work.
4.8
The Principal’s Representative may direct the Contractor to promptly remove from the
Site any employee of the Contractor or of the Contractor’s subcontractors.
4.9
The Principal may, either itself or by a third party, perform any obligation which the
Contractor was obliged to perform under the Contract but which it failed to perform
(including complying with a written direction of the Principal’s Representative). The
costs, expenses and damages suffered or incurred by the Principal in performing such
an obligation will be a debt due from the Contractor to the Principal.
Provision of the Site
5.1
The Principal must, between the Commencement Date and the Date of Practical
Completion, give the Contractor non-exclusive access to sufficient areas of the Site as
is necessary, from time to time, for the performance of the Work on Site.
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5.2
During the Defects Liability Period, the Principal must give the Contractor the right to
enter the Site for the purpose of carrying out rectification work.
5.3
The Contractor acknowledges that, while the Work is carried out, the Site may be used
by the Principal, its agents, tenants and contractors for any purpose and by members of
the public for the ordinary use of the Site.
5.4
The Contractor must, subject to Clause 5.7, give the Principal, the Principal’s
Representative, the Principal’s other employees, agents, tenants and contractors, and
members of the public access to the Site at all reasonable times. The Contractor must
not make any claim against the Principal for any loss, cost or damage or additional
time or disruption incurred by it as a consequence of that access or use.
5.5
A delay by the Principal in giving the Contractor access to the Site or any part of the
Site under Clause 5.1 will not be a breach of the Contract by the Principal but may
justify an extension of time under Clause 15.
5.6
The Contractor must:
(a)
make good at its own cost all fencing, roads, footpaths and surfaces generally
which are disturbed by the performance of the Work;
(b)
keep the Site and adjacent areas clean and tidy during the performance of the
Work and remove from the Site all rubbish, debris and waste resulting from the
performance of the Work (and the Contractor recognizes that poor
housekeeping is a serious health and safety risk and will immediately attend to
poor housekeeping as soon as it is identified); and
(c)
prior to Practical Completion restore the Site and adjacent areas to as good a
state of repair as they were in when the Contractor commenced the Work.
5.7
The Contractor must at its cost take all measures necessary to protect people and
property at the Site including avoiding unnecessary interference with the passage of
people and vehicles and preventing nuisance and unreasonable noise and interference.
If there is a possibility that any person may be injured by access to any part of the Site,
the Contractor must take whatever steps are necessary to restrict access to that part of
the Site.
5.8
The Contractor is responsible for setting out the Work and, in doing so, must not
disturb any survey marks on the Site.
5.9
The Contractor must co-operate with all other persons performing work on the Site.
Separate contractors
6.1
6.2
The Principal may arrange for or allow other contractors (“separate contractors”) to
work upon the Site to perform concurrently with the execution by the Contractor of
the Work any tasks, activities or services:
(a)
other than the Work which, pursuant to this Contract, is to be performed by the
Contractor;
(b)
which have been omitted from the Work as a Variation under Clause 12; or
(c)
required by the Principal, including the operation and maintenance of the
Principal’s existing plant or equipment, or the installation, operation and
maintenance of any other plant or equipment.
The Contractor must co-ordinate the performance of the Work with the performance
of the work of separate contractors (but is not responsible for co-ordinating the work
of separate contractors) and must co-operate with the separate contractors and the
Principal’s Representative to do so. The Contractor will have no Entitlement as a
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consequence of separate contractors and the Principal being on the Site or for any
thing caused or contributed to by a separate contractor.
6.3
7
Care of the Work
7.1
Except as provided for in Clause 7.3, the Contractor is responsible for:
(a)
the care of the Work, constructional plant and things entrusted to the Contractor
by the Principal for the purpose of performing the Work from and including the
Contract Commencement Date up to and including the Date of Practical
Completion; and
(b)
any loss of or damage to the Work caused by the Contractor or any of its
subcontractors during the Defects Liability Period.
7.2
The Contractor must make good at the Contractor’s expense any damage which occurs
to the Work, constructional plant and things entrusted to the Contractor by the
Principal while the Contractor is responsible for their care except for damage which
arises from any of the excepted risks in Clause 7.3.
7.3
The Contractor is not liable for:
7.4
8
The Contractor is not responsible for nor required to insure against damage to the
Work caused by separate contractors.
(a)
any negligent act or omission of the Principal’s Representative, the Principal or
its consultants, agents, employees or other contractors (not being employed by
the Contractor);
(b)
war, invasion, act of foreign enemies, hostilities (whether war be declared or
not), civil war, rebellion, revolution, insurrection or military or usurped power,
martial law or confiscation by order of any Authority (except where the
confiscation arises as a consequence of an act of the Contractor), acts of God;
and
(c)
ionising radiations or contamination by radioactivity from any nuclear fuel or
from any nuclear waste from the combustion of nuclear fuel not caused by the
Contractor or its subcontractors or any of their employees or agents.
If urgent action is necessary to protect the Work or any property or people, the
Principal may take that action. The cost to the Principal of taking any urgent action
will be a debt due from the Contractor to the Principal.
Releases and indemnities
8.1
The Contractor releases the Indemnified Parties from any liability or obligation to the
Contractor, or any person claiming through or on behalf of the Contractor, in respect
of:
(a)
physical loss of, or damage to, any real or personal property;
(b)
personal injury, disease or illness to, or death of, persons; or
(c)
financial loss or expense,
arising out of the performance of the Work and its other obligations under the
Contract.
8.2
The Contractor’s release in Clause 8.1 does not apply to the extent that:
(a)
a negligent act or omission of any of the Indemnified Parties; or
(b)
a breach of or default under the Contract by the Principal,
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has contributed to the loss, damage, injury, disease, illness, death, financial loss or
expense.
8.3
The Contractor must indemnify the Indemnified Parties against any loss, expense or
damage of any nature, including financial loss and lawyers’ fees and expenses on an
indemnity basis, suffered or incurred by them arising out of the performance of the
Work and its other obligations under the Contract, including loss, expense or damage:
(a)
(b)
8.4
in respect of:
(i)
physical loss of, or damage to, property of the Principal;
(ii)
damage to any other property; and
(iii)
personal injury, disease, illness or death; and
by reason of any infringement or alleged infringement of any of the protected
rights listed in Clause 3.11 by the Contractor and its subcontractors, in respect
of the Work or of any machine, equipment, work, material or thing, system or
method of using, fixing or working, or any arrangement used or fixed or
supplied by the Contractor and its subcontractors.
The Contractor’s liability to indemnify the Indemnified Parties under Clause 8.2 will
be reduced proportionally to the extent only that:
(a)
a negligent act or omission of the Indemnified Parties; or
(b)
a breach of this agreement by the Principal,
has contributed to the loss, expense or damage.
9
Latent conditions
9.1
The Contract Sum is deemed to include for overcoming all conditions on or within the
Site and its surrounds which could have been discovered or reasonably contemplated
by a competent contractor who had:
(a)
examined all information made available by the Principal to the Contractor for
the purpose of making an offer to perform the Work;
(b)
made measurements at the Site of all dimensions which may have an impact on
the Work and/or the Contract Sum;
(c)
obtained and examined all information reasonably obtainable from Authorities
by the making of reasonable enquiries and made all reasonable enquiries of the
Principal in order to discover whether the Principal holds any specific
information that may relate to the Site; and
(d)
inspected the Site and its near surrounds,
and the Contractor warrants that, prior to its entry into the Contract, the Contractor
carried out such examinations, measurements, enquiries and inspections.
10
9.2
If the Contractor becomes aware of a condition on or within the Site or its surrounds
which could not have been contemplated under Clause 9.1, it must promptly, and
where possible before disturbing the condition, give the Principal’s Representative
written notice including full particulars of the condition.
9.3
The Principal’s Representative may, on receipt of the notice given under Clause 9.2,
give a direction for a Variation under Clause 12.2.
Non conforming work
10.1
The Principal’s Representative may, at any time, direct that any materials and work
forming any part of the Work be uncovered, recovered or tested.
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10.2
The cost of complying with a direction given under Clause 10.1 must be borne by the
Contractor unless the work uncovered, recovered or tested complies with the
requirements of the Contract in which case the Contract Sum will be altered as if the
direction was a direction for a Variation under Clause 12.2.
10.3
If the Principal’s Representative is of the opinion that any materials or work are not
satisfactory or detects any defects in or omissions from the Work, then the Principal’s
Representative may direct the Contractor at the Contractor’s expense and within the
time directed by the Principal’s Representative to:
10.4
11
(a)
remove, rectify or replace the defective work or correct the omission; and
(b)
make good all damage, loss or injury to the Work caused by them.
If the Contractor fails to comply with a direction given by the Principal’s
Representative under Clause 10.3 within the time specified by the Principal’s
Representative in the direction or, if none is specified, in a reasonable time, the
Principal, after notifying the Contractor in writing, may have the work of removal,
rectification or replacement carried out by other persons and the cost incurred by the
Principal in having the work so carried out will be a debt due from the Contractor to
the Principal.
Insurance
11.1
The Contractor must effect and maintain:
(a)
from the Contract Commencement Date until the issue of the Final Certificate,
the following policies of insurance on terms and with reputable insurers
approved by the Principal’s Representative:
(i)
(b)
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public and products liability insurance, with a limit of indemnity of not
less than $10 million for each occurrence, covering:
A.
the Principal, the Principal’s Representative, the Contractor and
its subcontractors against liabilities at law for damages in respect
of personal injury (including death) and damage to property in
all areas where Work is carried out arising out of or in
connection with the Work; and
B.
the Contractor’s liability at law for damages in respect of the
death of, or injury to, any person or damage to any real or
personal property, including the property of the Principal or any
other person arising out of the use, manufacture, supply or
installation of any item or thing by the Contractor; and
(ii)
workers compensation insurance, in a form prescribed or approved under
or issued in pursuance of any workers’ compensation legislation
applicable to the Contractor, covering liability for death of, or injury to,
persons employed by or deemed to be employed by the Contractor,
including liability at common law and, where permitted by law, extended
to indemnity the Principal for the Principal’s statutory liability to persons
employed by the Contractor; and
(iii)
Contractor’s construction plant and equipment insurance, covering loss
of or damage to equipment (other than motor vehicles) owned or leased
by the Contractor which is used or to be used by the Contractor in
connection with the Contract, to its market value at the time loss or
damage occurs; and
contract works insurance, with a limit of indemnity of not less than the amount
set out in the Contract, from the Contract Commencement Date until the expiry
of the Defects Liability Period:
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(i)
on terms and with reputable insurers approved by the Principal’s
Representative;
(ii)
covering the Principal, the Principal’s Representative, the Contractor and
its subcontractors;
(iii) against physical loss, destruction of or damage to the Work, including
any individual component forming part of the Work and any associated
temporary works executed or in the course of construction in the
performance of the Contract; but
(iv)
excluding the Contractor’s construction plant and equipment while it is
in the care of the Contractor, personal effects or any other property of the
Contractor or its subcontractors and their respective employees and
agents, unless they are to be incorporated in the Work.
11.2
The Contractor must ensure that all subcontractors, before commencing work under
their respective contracts, are covered by or effect and maintain for each insurance or
other cover the Contractor is required to maintain in accordance with Clause 11.1,
policies of insurance or other cover of the types and for the amounts and periods set
out in Clause 11.1.
11.3
The insurances referred to in Clause 11.1 must extend to include the Principal, the
Principal’s Representative and each subcontractor as an insured or, where this is
unobtainable, contain an agreement by the insurer to waive all rights of subrogation
against those parties.
11.4
Prior to commencing the Work on the Site, and whenever required by the Principal’s
Representative from time to time, the Contractor must provide to the Principal’s
Representative certificates of currency for each of the insurance policies required
under Clause 11.1, failing which the Principal will be entitled to arrange those
insurances and the costs of so doing will be a debt due from the Contractor to the
Principal.
11.5
The Contractor must not do anything or allow anything to be done which might cause
the insurances referred to in Clause 11.1 to be cancelled, avoided or otherwise
prejudiced.
11.6
If any insurance the Contractor is required to maintain under this Clause 11 is effected
with an insurer in Australia:
(a)
(b)
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where the insurance policy was effected before the date of the Contract, the
Contractor:
(i)
warrants that it informed the insurer of the extent of its entitlement to an
Input Tax Credit for the last premium it paid at or before the time of first
making any subsequent claim under the insurance policy; and
(ii)
must provide written proof of this to the Principal’s Representative within
five (5) Business Days of the date of the Contract; and
with respect to every insurance policy referred to in Clause 11, whether effected
before, on or after the date of the Contract, the Contractor must:
(i)
immediately inform the insurer of any change in the extent of its
entitlement to an Input Tax Credit for the last premium paid;
(ii)
inform the insurer of the extent of its entitlement to an Input Tax Credit
for any future premium it pays immediately after paying that premium;
and
(iii)
provide written proof to the Principal's Representative that its has
complied with Clauses 11.6(b)(i) and (ii) within five (5) Business Days of
informing the insurer.
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For the purposes of this Clause 11.6, “Input Tax Credit” has the meaning it has in the
GST Act.
12
Variations
12.1
12.2
The Principal’s Representative may, at any time, by notice in writing expressly
identified as a “Variation Request”, advise the Contractor of a proposed Variation
and require the Contractor, within the time specified, to deliver a written “Variation
Proposal” which must contain:
(a)
an estimate of the valuation of the proposed Variation and any adjustment to the
Contract Sum (if any);
(b)
an estimate of the effect the proposed Variation will have on the Date for
Practical Completion (if any); and
(c)
if the proposed Variation is likely to delay the Date for Practical Completion:
(i)
the Contractor’s assessment as to whether it is practicable to accelerate
the performance of the Work; and
(ii)
if it is practicable to do so, an estimate of the earlier date that Practical
Completion can be achieved and the Contractor’s acceleration costs.
Within 10 Business Days of receipt of a Variation Proposal from the Contractor (or
such other period as may be agreed by the Contractor and the Principal’s
Representative), the Principal’s Representative may:
(a)
issue a written notice expressly identified as a “Variation Direction” to the
Contractor in respect of the proposed Variation, setting out:
(i)
the valuation of the Variation, calculated in accordance with Clause 12.5;
(ii)
any adjustment to the Contract Sum; and
(iii)
the Principal’s Representative’s determination of any extension of, or
reduction in, time for the performance of the Work; or
(b)
direct that the Variation not be carried out; or
(c)
ask the Contractor for another Variation Proposal.
12.3
On receipt of a written Variation Direction from the Principal, the Contractor must
perform the Variation described in the Variation Direction.
12.4
If, at any time, the Contractor considers that a Variation is required, it must deliver a
written Variation Proposal to the Principal’s Representative.
12.5
Subject to Clause 12.6, the amount of the addition to or deduction from the Contract
Sum for a Variation will be the amount appearing in the Variation Direction,
calculated as follows:
12.6
(a)
to the extent the parties have agreed the amount of the alteration, the amount
so agreed;
(b)
to the extent the Contract provides for the amount of the alteration, then that
amount; or
(c)
to the extent that those provisions do not apply, by arriving at a reasonable
amount, having regard to any increase or decrease in the costs that have or
will be incurred by the Contractor, as determined by the Principal’s
Representative.
The Contractor will not be entitled to an adjustment to the Contract Sum or an
extension of time in relation to a Variation unless:
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14
(a)
it has received a written Variation Direction from the Principal’s Representative
to perform a Variation;
(b)
it has given any notice required by this Clause 12 strictly in accordance with the
requirements of this Clause 12;
(c)
there is no provision of the Contract which provides that the Contractor has no
entitlement in relation to that Variation; and
(d)
the Variation was not directed at the request of and solely for the convenience
of the Contractor.
12.7
Where the Principal’s Representative has given a Variation Direction, the Date for
Practical Completion will be altered to the dates contained in the Variation Direction.
12.8
If a Variation directed by the Principal requires the omission of work:
(a)
the Principal may retain a third party to perform the part of the Work
omitted; and
(b)
the Principal will have no liability to the Contractor for any resultant losses,
including loss of profit.
Suspension of Work
13.1
The Contractor must not suspend the progress of the Work or any part of it except
where directed to do so by the Principal’s Representative under this Clause 13 or
allowed by law.
13.2
The Principal’s Representative may at any time direct the Contractor to suspend the
progress of the Work or any part of it for such time or times as the Principal’s
Representative may think fit.
13.3
The Principal’s Representative may give the Contractor a direction to recommence
work that was the subject of a direction to suspend.
13.4
Subject to Clause 13.5, where a direction is given under Clause 13.2, the Principal’s
Representative must alter the Contract Sum in accordance with Clause 17.2 for the
direct costs incurred by the Contractor as a consequence of complying with the
direction.
13.5
The Contractor will have no Entitlement to the extent that the reason for the
suspension was caused by an act, default or omission of the Contractor or an
employee, subcontractor or agent of the Contractor.
Practical Completion and Final Certificate
14.1
The Contractor must:
(a)
commence the Work on the Contract Commencement Date and bring the Work
to Practical Completion by the Date for Practical Completion; and
(b)
proceed with the Work with due expedition having regard to the program issued
by the Principal (if any).
14.2
The Contractor must, within five (5) Business Days of commencing the Work, deliver
to the Principal’s Representative a program for the performance of the Work in a form
approved by the Principal’s Representative. The Contractor must update the program
as and when directed to do so by the Principal’s Representative.
14.3
The Contractor must give the Principal’s Representative at least five (5) Business
Days’ written notice of the date upon which the Contractor anticipates that Practical
Completion will be reached.
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14.4
Within five (5) Business Days of the date given in clause 14.3, or within five Business
days of the Date of Practical Completion, the Principal’s Representative must give the
Contractor and the Principal either a certificate stating the date on which Practical
Completion was reached or written reasons for not doing so. The certificate may
include a list of minor omissions and defects which do not prevent the Work from
being reasonably capable of use for its intended purpose. If the Principal’s
Representative issues written reasons for not issuing the certificate, then the
Contractor must repeat the process set out in Clause 14.3 until the Principal’s
Representative gives a certificate.
14.5
The Principal’s Representative may issue a certificate of Practical Completion whether
or not the Contractor has given a notice under Clause 14.3.
14.6
From the time shown on the certificate of Practical Completion or, if none is shown,
from 5pm on the Date of Practical Completion, the Contractor must give the Principal
occupation of the Site and the Work.
14.7
Within ten (10) Business Days after the expiry of the Defects Liability Period, the
Contractor must provide the Principal’s Representative with a final payment claim
which includes details of all moneys which the Contractor considers to be due to it
from the Principal in connection with the subject matter of the Contract and which
includes the duly signed written statement as required by Clause 17.12.
14.8
Within ten (10) Business Days after:
(a)
the Principal’s Representative receives the Contractor’s final payment claim; or
(b)
if no final payment claim is received, the date for lodgment of the final payment
claim,
the Principal’s Representative must issue to the Contractor a Final Certificate
evidencing the moneys finally due and payable between the Contractor and the
Principal on any account whatsoever in connection with the subject matter of the
Contract (including the balance of any retention moneys).
15
14.9
Those moneys certified under Clause 14.8 as due and payable must be paid, subject to
Clause 14.10, within ten (10) Business Days after the Contractor receives the Final
Certificate.
14.10
Except for the amounts payable under Clause 14.9, and any amount which is agreed or
decided by an expert appointed under Clause 23.5 to be owing, the Principal will not
be liable to the Contractor for and the Contractor will have no Entitlement to any sum
on any claim (whether already made at the date of issue of the Final Certificate or not)
after the issue of the Final Certificate and may, prior to making any payment under
Clause 14.9, require the Contractor to execute a deed of release on terms satisfactory
to the Principal.
14.11
The issue of a certificate under the Contract (including the Final Certificate) will not
constitute approval or acceptance of any Work or other matter nor will it prejudice any
claim by the Principal against the Contractor under general law.
Extensions of time
15.1
The Principal’s Representative may, at any time, from time to time, and for any
reason, by notice in writing to the Contractor, extend the Date for Practical
Completion but has no obligation to the Contractor to extend, or to consider whether it
should extend, such date, other than for a cause of delay in respect of which the
Contractor is expressly entitled under the Contract to an extension of time to the Date
for Practical Completion.
15.2
The Contractor will be entitled to an extension to the Date for Practical Completion if:
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15.3
(a)
the Contractor provides the Principal’s Representative, within ten (10) Business
Days from commencement of the delay, with written notice of the delay
including details of the cause of the delay;
(b)
the Contractor provides the Principal’s Representative, within ten (10) Business
Days of the date the delay ceases, with a claim for an extension of time;
(c)
there is no provision in the Contract to the effect that the Contractor has no
Entitlement in relation to that cause of delay; and
(d)
the delay:
(i)
has been caused by an act or omission of the Principal, the Principal’s
Representative or an agent, consultant, employee or contractor of the
Principal, which is a breach of the Contract; or
(ii)
is a result of a suspension by the Contractor of the performance of the
Work permitted by law.
The Contractor will have no Entitlement to an extension of time to the Date of
Practical Completion if the Contractor:
(a)
has caused or has contributed to the cause of the delay; or
(b)
has not satisfied all of the requirements of Clause 15.2.
15.4
The period of any extension of time to the Date for Practical Completion which the
Contractor is entitled to under this Clause 15 will be the reasonable period by which
the Principal’s Representative determines the Contractor has been delayed in reaching
Practical Completion as a consequence of the cause of the delay, as notified in writing
by the Principal to the Contractor.
15.5
Where the Contractor has been granted an extension of time under clause 15.4 for any
delay caused by any of the events referred to in clause 15.2(d)(i), the Contractor may
be entitled to the delay costs directly incurred by the Contractor by reason of the
delay.
15.6
Any entitlement the Contractor may have to its direct delay costs is subject to the
Contractor satisfying the Principal’s Representative that the Contractor:
15.7
(a)
has done all things reasonably necessary to mitigate any such costs;
(b)
the direct delay costs have not already been included in the value of a variation
or any other payment under the Contract; and
(c)
the Contractor has actually incurred the direct costs it is claiming.
The Principal and the Contractor may agree on such direct delay costs as are directly
incurred by the Contractor by reason of the delay, and, failing agreement, the
Principal’s Representative will determine the delay costs.
Nothing in this clause 15 shall oblige the Principal to pay extra costs for delay or disruption
which have already been included in the value of a variation or any other payment under the
Contract.
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Liquidated damages
If the Contractor fails to bring the Work to Practical Completion by the Date for Practical
Completion, the Contractor must pay the Principal liquidated damages at the rate specified in
the Contract for every day or part of a day from the Date for Practical Completion to and
including the Date of Practical Completion, up to the limit of liquidated damages specified in
the Contract. Such amount will be a debt due from the Contractor to the Principal. If no
liquidated damages are identified in the Contract or if they are identified as “not applicable”,
“NA” or “nil”, then Liquidated Damages do not apply, and the Principal is entitled to recover
common law damages from the Contractor.
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Price and payment
17.1
The Principal must pay the Contractor the Contract Sum in consideration for the
Contractor’s fulfilment of all its obligations under the Contract.
17.2
The amount of any alteration to the Contract Sum will be ascertained:
(a)
by agreement in writing between the parties;
(b)
by any amount provided for in the Contract; or
(c)
otherwise by the Principal’s Representative determining an amount he considers
to be reasonable.
17.3
The Contractor must, at the intervals of not less than a month submit to the Principal’s
Representative a payment claim which identifies clearly the amount owing to the
Contractor under the Contract and including details of any amount claimed by any of
the Contractor’s subcontractors, which is the subject of a dispute between the
Contractor and that subcontractor and details of the dispute. With each payment
claim, and at any other time directed by the Principal’s Representative, the Contractor
must give the Principal’s Representative the duly signed written statement as required
by Clause 17.12.
17.4
The Principal’s Representative must, within ten (10) Business Days of each payment
claim, notify the Contractor of the amount payable in relation to the payment claim,
and if this is different to the amount claimed by the Contractor, provide detailed
written reasons for the difference.
17.5
The amount payable by the Principal to the Contractor in relation to each payment
claim is calculated:
(a)
if the Contract Sum is not a lump sum, by multiplying the Rates by the quantity
(as measured by the Principal’s Representative) of each item of work actually
carried out by the Contractor in accordance with the Contract;
(b)
if the Contract Sum is a lump sum,, by valuing the Work completed to the date
of the claim (as a proportion of the Contract Sum);
(c)
by deducting the approximate amount which, in the opinion of the Principal’s
Representative, would be necessary to rectify any defects in the Work;
(d)
by adding any other amounts due by the Principal to the Contractor pursuant to
the Contract;
(e)
by subtracting any amount due from the Contractor to the Principal, or if it is
likely to be due but has not yet been quantified, a reasonable estimate of that
amount; and
(f)
by deducting retention moneys pursuant to Clause 18.1(b) (if applicable).
17.6
The Principal is not obliged to make any payment to the Contractor before the
Contractor has provided evidence of the insurances required under the Contract.
17.7
The Contractor must deliver to the Principal a Valid Tax Invoice for the amount
notified by the Principal’s Representative under Clause 17.4.
17.8
The Principal must pay the Contractor the amount payable in relation to the payment
claim on the day that is the later of:
(a)
thirty-two (32) days after the end of the month in which:
(i)
the Valid Tax Invoice under Clause 17.7; or
(ii)
if applicable, an adjustment note for the amount payable as contemplated
by Clause 21.4,
is received by the Principal’s Representative; and
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(b)
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the date on which the following documents are received by the Principal’s
Representative:
(i)
the completed statement referred to in Clause 17.12; and
(ii)
evidence of insurance in accordance with Clause 11.4.
17.9
Payment is not evidence of the value of work or an admission of liability or that work
is satisfactory but is a payment on account only.
17.10
Without limiting the Principal's rights under any other provision in the Contract, the
Principal may deduct from any moneys due to the Contractor or from any security
retained under Clause 18 any amount due from the Contractor to the Principal whether
under the Contract, another contract or at law. Nothing in this Clause 17.10 will affect
the right of the Principal to recover from the Contractor the whole of any such moneys
or any balance that remains owing.
17.11
The Contractor is solely responsible for any and all taxes (except to the extent dealt
with in Clause 21), duties, levies, charges and deductions including stamp duty,
payroll tax, customs duty and fuel excise (including any penalties and additional
payments thereon), paid or payable in the execution and performance of the Contract
and they are deemed to be included in the Contract Sum.
17.12
The Contractor must, in respect of each payment to be made by the Principal to the
Contractor under the Contract, give the Principal’s Representative a duly completed
signed written statement by a director of the Contractor (or such other person as may
be approved by the Principal) in a form approved by the Principal regarding workers
compensation, payroll tax and remuneration.
Security
18.1
18.2
18.3
As security for the due and proper performance of the Work and its other obligations
under the Contract by the Contractor:
(a)
the Contractor must, on or before the first payment claim by the Contractor
under the Contract, give the Principal two (2) unconditional banker’s
undertakings from a financial institution and in a form approved by the
Principal, each for the amount specified in the Contract; or
(b)
where it is stated in the Contract that retention of security applies the Principal
may retain from the amount of each payment assessment under Clause 17.5
retention moneys at the rate specified in the Contract, until the percentage of the
Contract Sum so nominated in the Contract is reached.
Where the Contractor has provided unconditional banker’s undertakings in accordance
with Clause 18.1(a), the Principal must return to the Contractor:
(a)
one of the unconditional banker’s undertakings held by it within ten (10)
Business Days after receipt of a written request from the Contractor, which
request can only be made after the Principal’s Representative has issued a
certificate stating that Practical Completion has been reached pursuant to Clause
14.4 or 14.5; and
(b)
one of the unconditional banker’s undertakings held by it within ten (10)
Business Days after receipt of a written request from the Contractor, which
request can only be made after the Principal’s Representative has issued a Final
Certificate pursuant to Clause 14.8 and, where the Final Certificate provides
that moneys are due from the Contractor to the Principal, the Contractor has
paid the Principal the moneys due under the Final Certificate.
Where the Principal has retained moneys from payment assessments in accordance
with Clause 18.1(b):
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one half of the retention moneys held by the Principal must be accounted for in
the payment assessment immediately after the Principal’s Representative has
issued a certificate stating that Practical Completion has been reached pursuant
to Clause 14.4 or 14.5; and
(b)
the balance of the retention moneys held by the Principal must be accounted for
in the Final Certificate.
18.4
The Principal may, at any time, have recourse to retention moneys or convert an
unconditional banker’s undertaking into money.
18.5
If the Principal does convert an unconditional banker’s undertaking, the Principal does
not hold the amount received on trust for the Contractor. If the Contractor is not in
default of the due and proper performance of the Work at the date that an
unconditional banker’s undertaking is converted into money, the Principal must pay
interest at the official Australian cash rate as quoted by the Reserve Bank of Australia,
for each day, on the amount converted from the date of conversion until the first to
occur of the date of repayment under Clause 18.2 or the date that the Contractor does
default in the due and proper performance of the Contract.
18.6
Except as provided in Clause 18.5, the Contractor will have no Entitlement as a
consequence of the conversion of an unconditional banker’s undertaking into money.
18.7
The Contractor agrees that:
18.8
19
(a)
(a)
the Principal has a right to convert an unconditional banker’s undertaking into
money at any time without reference to the Contractor;
(b)
in the event of such conversion, the amounts payable by the Principal under
Clause 18.5 are an adequate remedy for the Contractor; and
(c)
the Contractor has no entitlement to obtain an injunction preventing the
Principal from converting an unconditional banker’s undertaking into money.
The Contractor is responsible for all stamp duty (including penalties, if applicable)
payable in connection with the unconditional banker’s undertakings provided by the
Contractor, and any demands made on those unconditional banker’s undertakings.
Defects liability period
19.1
The Defects Liability Period will commence on the Date of Practical Completion and
will continue for the period stated in the Contract or, if no period is stated, 12 months.
19.2
At any time up to ten (10) Business Days after the expiry of the Defects Liability
Period, the Principal’s Representative may direct the Contractor to rectify an omission
or defect in the Work. The Contractor must comply with any direction within the time
and at the times stated in the direction, or if no time is stated, promptly.
19.3
If the Contractor fails to comply with a direction given under Clause 19.2, or where
the rectification work is required urgently, the Principal may have the work performed
by others. The cost to the Principal of having the work performed will be a debt due
from the Contractor to the Principal.
Confidentiality and media releases
20.1
“Confidential Information” means any ideas, concepts, drawings, specifications,
data or information which:
(a)
relates to the operation or business of the Principal;
(b)
have been produced by the Principal, the Contractor, any subcontractor or any
third party; and
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(c)
20.2
20.3
20.4
21
have only been obtained or produced by those parties as an incident to the
performance of the Work.
Subject to Clause 20.3 and except to the extent necessary to carry out the Work, the
Contractor must not, and must ensure that its employees and its subcontractors do not,
without the prior written approval of the Principal, at any time (including after the
termination or expiry of the Contract):
(a)
disclose or give to any person any Confidential Information; or
(b)
use or reproduce, or permit or allow any other person to use or reproduce, the
Confidential Information.
Clause 20.2 does not apply to the extent that the Confidential Information is:
(a)
in the public domain at the time that the Confidential Information is disclosed or
given; or
(b)
required by law to be disclosed or given.
Without limiting the generality of Clause 20.2, the Contractor must not and must
ensure that its employees and its subcontractors and their employees do not:
(a)
advertise or issue any information, publication, document or article for
publication or media release concerning the Work or the Principal’s business
and activities without the prior written approval of the Principal; or
(b)
take photographs or videos of the Principal’s property.
20.5
The Contractor must refer to the Principal any enquiries from the media concerning
the Work or the Principal’s business and activities.
20.6
Within ten (10) Business Days of the first to occur of the completion of the Work or
the termination of the Contract, the Contractor must return to the Principal all
documents or records (including all Confidential Information) the Principal has
supplied to the Contractor in respect of the Work and copies of any documents or
records of the Principal held by the Contractor. The Contractor may retain one copy of
the documents for the purpose only of keeping a record.
Goods and services tax
21.1
The Contract Sum is deemed to be exclusive of GST payable in respect of the Work.
21.2
If GST is imposed under the GST Act on any supply made under the Contract
(including the supply of any other right, goods, services, benefits or other things) the
consideration for which is not included in the Contract Sum, the supplier may, in
addition to the consideration for the supply, recover from the recipient of the supply
an additional amount on account of GST.
21.3
The additional amount referred to in Clause 21.2:
21.4
(a)
is equal to the consideration payable by the recipient of the supply for the
relevant supply multiplied by the prevailing GST rate; and
(b)
is payable at the same time and in the same manner as the consideration for the
supply to which the additional amount relates.
If for any reason, the amount recovered by a supplier from the recipient of the supply
under this Clause 21 differs from the amount of GST lawfully imposed on the supply
then the supplier must issue an adjustment note to the recipient of the supply within
ten (10) Business Days of the date of the adjustment event and will be entitled to
recover the difference from, or will be liable to pay the difference to, as the case may
be, the recipient of the supply.
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21.5
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If the Contract requires a party to reimburse or indemnify the other party for any
expense, loss or outgoings (“reimbursable expense”) the amount required to be paid
by the first party will be the sum of:
(a)
the amount of the reimbursable expense net of input tax credits (if any) to which
the other party is entitled in respect of the reimbursable expense (“net amount”);
and
(b)
if the other party’s recovery from the first party is a taxable supply, any GST
payable in respect of that supply.
21.6
This Clause 21 takes effect notwithstanding any inconsistent Clause or any Clause to
the contrary in the Contract. To the extent of any inconsistency between this
Clause 21 and any other provision of the Contract, this Clause 21 will take
precedence.
21.7
If the rate of GST is varied by law from 10%, the consideration for any supply under
the Contract will be varied to reflect the change of rate and any reduction in any other
tax, duty or statutory charge connected with the rate change.
21.8
The Contractor must, by the date of signing of the Contract, be registered for GST
pursuant to the GST Act and remain registered until the earlier of the termination or
expiry of the Contract.
Notices
22.1
Notices referred to in the Contract must be given within the time provided for in the
Contract. If the Contractor fails to give a notice in that time, the Contractor will be
barred from making any claim in relation to the matters which were or should have
been the subject of the notice.
22.2
A notice must be given in writing and must include all of the details required under the
Contract. For the purposes of Clause 22.1, a notice will be deemed to have not been
given in time if it does not contain all of the information required by the Contract.
22.3
Notices to the parties which are sent to the addresses in the Contract will be deemed to
have been given:
(a)
if by hand, on the date of delivery;
(b)
if by fax, on the date identified in a report by the sending facsimile machine as
the date on which the notice was successfully forwarded; and
(c)
if by post, two (2) Business Days after the date of posting.
22.4
A notice sent by email alone is invalid. An original signed copy of any notice emailed
must also be given by hand, sent by facsimile or by post and will be deemed to have
been given on the date deemed under Clause 22.3.
22.5
The requirement to give a notice including all of the detail required under the Contract
cannot be waived by the Principal’s Representative.
22.6
The Contractor acknowledges that:
(a)
notices are required to be delivered by the Contractor in the forms and within
the times provided for under the Contract so that the Principal’s Representative
and the Principal have an opportunity to assess the matters the subject of the
notice in sufficient time:
(i)
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(ii)
(b)
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for the details surrounding the claim to be assessed by the Principal’s
Representative at the time that the claim arises; and
if the notice is not given within the time or does not contain all of the
information required under the Contract, an action for damages will not be
satisfactory for the Principal.
Disputes
23.1
Notwithstanding the existence of a dispute, each party must continue to perform its
obligations under the Contract. The existence of a dispute will not prejudice either
party’s rights to terminate the Contract for any reason.
23.2
If a dispute arises at any time, the party raising the dispute must immediately notify
the other party in writing with detailed particulars of the dispute including:
(a)
each item of claim and the basis for it;
(b)
any amount claimed in respect of each item of claim;
(c)
the Clauses in the Contract and the documents upon which each item of claim is
based;
(d)
if an act or omission is relied upon, the person or persons involved, the nature of
the act or omission, the date, whether it was oral or in writing and the
particulars; and
(e)
any decision sought in respect of the dispute.
23.3
The party receiving a notice of dispute must deliver a response in writing within five
(5) Business Days of receiving the notice of dispute.
23.4
Within ten (10) Business Days of receiving the response or, if a response is not
delivered, within ten (10) Business Days of the end of the time limited for delivering a
response, the Principal’s Representative must:
(a)
convene a without prejudice meeting in the capital city of the State or Territory
in Australia where the Site is situated between the immediate superior of the
Principal’s Representative (in the organization of which the Principal’s
Representative is an employee) and a delegate of the Contractor’s Chief
Executive Officer to take place within twenty (20) Business Days of the notice
convening the meeting; and
(b)
appoint a person not involved in the Work to chair the meeting.
Each party must ensure that the representative attending the without prejudice
meeting, has the authority to settle the dispute and attempts to do so.
23.5
If the dispute is not resolved at the without prejudice meeting convened under Clause
23.4, then the Chief Executive Officers of both parties or their respective delegates,
will meet and confer as soon as reasonably practical after such dispute and in any
event within twenty (20) Business Days of the without prejudice meeting to attempt in
good faith to:
(a)
resolve the dispute; and
(b)
failing resolution of the dispute to explore alternative methods of resolving the
dispute such as conciliation, mediation or expert determination.
23.6
If either party is represented by a delegate of their Chief Executive Officer, then such
delegate must have authority to agree to a resolution of the dispute and/or an
alternative method of resolving the dispute.
23.7
If the parties cannot agree on the identity of the conciliator, mediator, or expert, then
either party may ask the executive officer of the Australasian Dispute Centre to
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nominate a suitable and available person and the person so nominated will be
appointed to that role.
23.8
24
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If the dispute is not resolved or a method for resolution of the dispute by alternative
means is not agreed within fifteen (15) Business Days of the time limited for the
meeting referred to in Clause 23.5, either party may commence proceedings in the
courts of the state where the Site is situated in relation to the matters the subject of the
dispute.
Miscellaneous
24.1
No waiver by the Principal of a breach of the Contract by the Contractor will
constitute a waiver of any subsequent or continuing breach by the Contractor.
24.2
A single or partial exercise or waiver by a party of a right relating to the Contract does
not prevent any other exercise of that right or the exercise of any other right.
24.3
Except as expressly stated otherwise in the Contract, each party must pay its own legal
and other costs and expenses of negotiating, preparing, executing and performing its
obligations under the Contract.
24.4
The Contract may only be varied or replaced by a document duly executed by the
parties.
24.5
Except as expressly stated otherwise in the Contract, the rights of a party under the
Contract are cumulative and are in addition to any other rights of that party.
24.6
Each party must promptly do whatever any other party reasonably requires of it to
give effect to the Contract and to perform its obligations under it.
24.7
The Contract is governed by and is to be construed in accordance with the laws in
force in New South Wales, Australia, irrespective of where the Site is situated. Each
party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the
state in Australia where the Site is situated and any courts which have jurisdiction to
hear appeals from any of those courts and waives any right to object to any
proceedings being brought in those courts.
24.8
An obligation of two or more persons binds them separately and together.
24.9
The Contract may consist of a number of counterparts and, if so, the counterparts
taken together constitute one document.
Default, insolvency and termination
25.1
If the Contractor commits a breach of the Contract, the Principal may give the
Contractor written notice of default. The notice of default must specify the breach and
the date by which the Contractor must rectify the breach.
25.2
If the Contractor fails to rectify the default within the time specified in the notice, the
Principal may, by notice in writing:
(a)
suspend payments due or which would become due under the Contract; and/or
(b)
either:
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(i)
immediately take over the uncompleted Work (including any
constructional plant, equipment and unincorporated materials of the
Contractor at the Site) and at its option have the Work completed by itself
or others; or
(ii)
terminate the Contract, in which case the respective rights and liabilities
of the parties will be the same as they would be at common law if the
Contractor had wrongfully repudiated the Contract.
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25.3
(a)
the costs of having the Work so completed by itself or others; and
(b)
the amount of suspended payments and retention moneys held by the Principal.
25.4
If the calculation in Clause 25.3 results in a shortfall to the Principal, the Contractor
must pay the amount of the shortfall to the Principal within five (5) Business Days of
a written demand for payment and the Principal may retain the Contractor’s
constructional plant, equipment and unincorporated materials until the debt is met. If
the debt is not met the Principal may sell the Contractor’s constructional plant,
equipment and unincorporated materials and apply the proceeds of sale to the
outstanding debt. If the calculation results in an excess to the Principal, the Principal
must pay the amount of the excess to the Contractor within five (5) Business Days of
receiving the calculation given under Clause 25.3.
25.5
The Principal may exercise any power under Clause 25.2 (in which case Clauses 25.3,
25.4 and 25.5 will also apply) if an Insolvency Event occurs with respect to the
Contractor.
25.6
If the Contractor validly terminates the Contract according to law, the Contractor will:
25.7
26
If the Principal exercises the power in Clause 25.2(b)(i), the Principal’s
Representative must, when the Work is complete, calculate the difference between:
(a)
be entitled to claim damages; and
(b)
not be entitled to a quantum meruit.
This Clause will survive the termination of the Contract.
Occupational health and safety
26.1
The parties acknowledge and agree that:
(a)
during the performance of the Work and its other obligations under the
Contract, the Contractor must:
(i)
comply with; and
(ii)
ensure that all persons for whom it is responsible (including
subcontractors) comply with,
all OHS Requirements; and
(b)
the Contractor must comply with any direction of the Principal’s Representative
given following a perceived breach of an OHS Requirement at the Site.
26.2
If the Contractor fails to comply with an obligation under this Clause 26, the Principal
may perform, or have performed, the obligation on the Contractor’s behalf and recover
from the Contractor the costs and expenses incurred as a debt.
26.3
In addition to complying with all OHS Requirements, the Contractor must comply
with the Contract’s occupational health, safety and environment requirements and
procedures.
26.4
The Contractor must give priority to ensuring safe work practices in relation to the
Contract.
26.5
The Contractor acknowledges that it has been informed by the Principal’s
Representative of its “duty of care” with respect to the Contract’s occupational health
and safety requirements and procedures and warrants that it will comply with such
requirements and procedures.
26.6
In the event that the Principal’s Representative discovers an unsafe practice or a
breach of OHS Requirements or the Contract’s requirements, then in addition to any
other rights under the Contract, the Principal’s Representative may immediately
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suspend the work associated with the unsafe practice or breach. The suspension will
not be lifted until the work area is made safe, the unsafe practice removed or the
breach rectified. All direct costs under this Clause 26 will be borne by the Contractor.
26.7
27
For the purposes of Chapter 8 of the Occupational Health and Safety Regulation 2001
(NSW), the Principal will act as the principal contractor for the Work carried at the
Site.
Security of payment
27.1
The Contractor must:
(a)
28
promptly give the Principal and the Principal’s Representative a copy of any
notice the Contractor:
(i)
receives from a subcontractor under sections 15, 16 or 24 of the Security
of Payment Act; or
(ii)
is required to supply to a subcontractor under section 15(1) of the
Contractors Debts Act setting out the Principal’s name;
(b)
ensure that each subcontractor promptly gives the Principal and the Principal’s
Representative a copy of any notice that the subcontractor receives from another
person under sections 15, 16 or 24 of the Security of Payment Act; and
(c)
promptly notify the Principal and the Principal’s Representative if it becomes
aware that a subcontractor intends to exercise a statutory lien, under section
11(3) of the Security of Payment Act, over unfixed plant and materials supplied
by the subcontractor for use in carrying out work forming part of the Work.
27.2
If the Principal becomes aware that a subcontractor is entitled to suspend work under
section 27 of the Security of Payment Act, the Principal may pay the subcontractor
such money that is, or may be, owing to the subcontractor for work forming part of the
Work and the Principal may recover from the Contractor any amount paid as a debt.
27.3
The Contractor must indemnify the Principal against any loss, expense or damage of
any nature, including financial loss and lawyers’ fees and expenses on an indemnity
basis, suffered or incurred by the Principal arising out of:
(a)
a suspension by a subcontractor of work, which forms part of the Work, under
section 27 of the Security of Payment Act;
(b)
a notice of claim being served on the Principal under Part 2 of the Contractors
Debts Act; and
(c)
a subcontractor exercising a statutory lien, under section 11(3) of the Security of
Payment Act, over unfixed plant or materials supplied by the subcontractor for
use in carrying out work forming part of the Work.
Proportionate liability
28.1
The Principal and the Contractor acknowledge and agree that:
(a)
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it is their intention that:
(i)
the Contractor be liable to the Principal under the Contract and in law for
the performance of the whole of the Work and its other obligations under
the Contract, including any part of the Work subcontracted by the
Contractor; and
(ii)
nothing in the Civil Liability Act 2002 (NSW) (“the Act”) limits or
otherwise affects the operation of the express provisions of the Contract
with regard to such liability of the Contractor; and
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(b)
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all rights, obligations and liabilities under or in connection with the Contract are
to apply, even where the relevant circumstances involve a failure to take
reasonable care and the existence of concurrent wrongdoers (as that term is
defined in section 34(2) of the Act), unlimited and otherwise unaffected by
anything that, but for this Clause, may by virtue of the provisions of the Act
have limited or otherwise affected those rights, obligations and liabilities.
Limitation of Liability
29.1
29.2
Except as specified in Clause 29.2, your liability to us under or in connection with
these Terms and Conditions or your performance of the Work and your other
obligations under these Terms and Conditions or in tort (including negligence) or
under any statute or otherwise at law, notwithstanding any other provision of these
Terms and Conditions (including indemnities):
(a)
does not include liability for any uninsured loss of profit or other uninsured
consequential or indirect loss;
(b)
is limited, in respect of any liability which is (or but for a failure by you to
comply with any of your obligations under Clause 11 would have been) an
insured risk under any insurance policy effected under Clause 11, to the amount
which is noted in that insurance policy as the maximum limit of indemnity
payable in respect of that liability, but only if that amount provides a limit
greater than that which would otherwise apply under clause 29.1(c); and
(c)
is otherwise limited in the aggregate to the Contract Sum, which amount is
exclusive of any amounts paid by you by way of deductibles under any
insurance policy effected in accordance with these Terms and Conditions.
The limitations on and exclusions from your liability contained in Clause 29.1 do not
apply to or limit or restrict in any way:
(a)
(b)
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your obligations by way of indemnity for:
(i)
third party property loss or damage or injury or death; and
(ii)
any infringement or alleged infringement of any Intellectual Property
Rights; and
your liability for loss, damage and expense caused by the fraudulent, criminal or
malicious and deliberate acts of your employees or subcontractors or agents,
whilst in the course of their employment.
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