Contractor And Subcontractor - Tenderlink · 4 Health, Safety and ... the remedied defective Works under the Principal Contract. ... “Subcontractor’s Materials” means goods

January 2012 Norfolk Group Limited | ACN 125 709 971 Level 5, 50 Berry St North Sydney NSW 2060 | PO Box 1417 North Sydney NSW 2059 Australia

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Contractor

And

Subcontractor

NORFOLK CONSTRUCTION SUBCONTRACT


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CONTENTS

1 Interpretations and Definitions .................................................................................................... 1

2 Subcontract ................................................................................................................................. 5

3 Obligations of Subcontractor ....................................................................................................... 5

4 Health, Safety and Environment ................................................................................................. 6

5 Quality Assurance Plan ............................................................................................................... 7

6 Materials, Plant and Equipment .................................................................................................. 7

7 Independent Contractor .............................................................................................................. 8

8 Working Drawings ....................................................................................................................... 9

9 Industrial Relations ...................................................................................................................... 9

10 Co-ordination ............................................................................................................................... 9

11 Testing and Commissioning ...................................................................................................... 10

12 Inclusions and Reliance ............................................................................................................ 10

13 Variations .................................................................................................................................. 11

14 Payment .................................................................................................................................... 12

15 Programme ................................................................................................................................ 14

16 Indemnity ................................................................................................................................... 14

17 Documentation .......................................................................................................................... 15

18 Assignment and Novation ......................................................................................................... 15

19 Default and Termination ............................................................................................................ 16

20 Insurance ................................................................................................................................... 16

21 Intellectual Property and Confidentiality .................................................................................... 18

22 Security ..................................................................................................................................... 19

23 General ...................................................................................................................................... 19

24 Dispute Resolution .................................................................................................................... 20

25 Force Majeure ........................................................................................................................... 21

26 Design Liability .......................................................................................................................... 21

27 Contractor Liability and Exclusion of Consequential Loss ........................................................ 22

28 Guarantee ................................................................................................................................. 22

29 Application of Personal Properties Securities Act 2012 ............................................................ 22

30 National Code of Practice for Construction Industry ................................................................. 22

31 Special Conditions .................................................................................................................... 24

ANNEXURE A ................................................................................................................................... 25


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THIS AGREEMENT is made on

BETWEEN [Contractor], ABN [insert] of Level 5, 50 Berry Street North Sydney NSW 2060 (“Contractor”)

AND [Subcontractor], ABN [insert] of [insert address] (“Subcontractor”)

AND [Guarantor(s)], ABN [insert] of [address] (jointly and severally “Guarantor”)

RECITALS

A Contractor is required to carry out the Works under the Principal Contract.

B The Subcontractor has represented to Contractor that it possesses the required skills and expertise to carry out the Works.

C Contractor wishes to engage the Subcontractor to perform the Works.

D The parties have agreed to enter into this Contract to regulate the basis on which the Works will proceed.

E The Guarantor has agreed, in consideration of Contractor entering into this Contract, to guarantee the performance by the Subcontractor of its obligations under the Contract.

IT IS AGREED as follows:

1 Interpretations and Definitions 1.1 Unless the context otherwise requires, or except as otherwise defined in Clause 1.2:

(a) The singular includes the plural and vice versa;

(b) A person includes a firm, an individual, a body corporate, an unincorporated association, a government or any government authority and the agents of that person, or any other form of entity;

(c) An agreement, liability, obligation, representation or warranty on the part of or in

favour of two or more persons binds or is for the benefit of them jointly and severally;

(d) A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(e) A reference to a person includes a reference to the person’s executors, administrator,

successors, substitutes (including, without limitation, persons taking by novation) and assigns; and

(f) A reference to a Clause is a reference to a Clause in this Contract.


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1.2 Unless the context otherwise requires:

“ABN” has the meaning given to that term in A New Tax System (Australian Business Number) Act 1999.

“Accepted Industry Practice” means at any time the exercise of that degree of care and skill which would reasonably be expected at that time from a skilled, competent and experienced provider of works of the kind to be provided by the Subcontractor pursuant to the Contract. “Annexure A” means the annexure to these general terms and conditions issued by Contractor to the Subcontractor detailing the Works, the Subcontract Sum and other relevant variables. “Commencement Date” means the expected date for commencement of Works as specified in Annexure A.

“Confidential information” includes (whether orally or in any form, and whether visible or not, of storage from which information can be recovered or reproduced) all information relating to Contractor’s business, financial arrangements, contractual arrangements with Contractor’s customers, financial and accounting information that comes into the Subcontractor’s knowledge or possession during the period of operation of the Contract whether in or in connection with the performance of the Work or otherwise, but does not include:

(a) information that is otherwise in the public domain except where it has entered the public domain unlawfully or in breach of the Contract; or

(b) information that is rightly obtained by the Subcontractor from Contractor or other

sources in relation to which the Subcontactor is advised in writing by Contractor or the other source that there are no restrictions in respect of its disclosure or use; or

(c) information that is independently developed by the Subcontractor prior to the date of

this Contract.

“Contract” means the agreement between the parties in respect of the Works and shall be constituted by:

(a) Principal Contract;

(b) Annexure A;

(c) these general terms and conditions;

(d) Specification (if any); and (e) Drawings (if any).

“Contractor-Supplied Information” means any information (whether written or otherwise) supplied or made available to the Subcontractor:

(a) by or on behalf of Contractor; or

(b) by or on behalf of Contractor's Representative: before or after the Commencement Date of the Contract in connection with the Works, the Site or anything in connection with the Contract, other than the Documentation.


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“Construction Programme” means the programme identified in Annexure A, or otherwise means the programme applying to Works under the Principal Contract. “Date for Practical Completion” is the expected date for Practical Completion of the Works specified in the Construction Programme.

“Date of Practical Completion” means the date of Practical Completion of the Works.

“Days” means calendar days.

“Defects Liability Period” unless otherwise specified in Annexure A, means in respect of:

(f) the Works, the greater of the period of 12 months from the Date of Practical

Completion and the defects liability period (or equivalent) relevant to the Works under the Principal Contract; and

(g) any defect in the Works which has been remedied, the greater of a further period of

12 months from the date Contractor confirms in writing that the defect has been remedied to its satisfaction and the defects liability period (or equivalent) relevant to the remedied defective Works under the Principal Contract.

“Design Documents” means the drawings including working drawings, specifications and any documents nominated by Contractor and all other information, samples, models, patterns and any other related documents required by the Principal Contract and/or documents created by the Subcontractor for the Works.

“Design Obligations” means all tasks necessarily undertaken by the Subcontractor to design and specify any equipment or work under the Contract including the preparation of the Design Documents.

“Documentation” means all of the documents referred to in Clause 17 hereof. “Drawings” means the drawings applicable to the Works irrespective of the date of issue as may be identified in Annexure A.

“Event of Default” means any of the events mentioned in Clause 19.2.

“Force Majeure“ means an event beyond the reasonable control of a party which by the exercise of reasonable diligence could not have been easily prevented or reasonably foreseen by that party that is caused by an act of God, flood, storm, cyclone, earthquake or other weather event causing loss or damage, fire or explosion, epidemic or quarantine, war, invasion, act or foreign enemies, hostilities or any act of terrorism, civil disorder or military revolution but does not include any inability (for any reason whatsoever) to pay or make payment.

“GST” has the meaning given to that term by the GST Law.

“GST Amount” means any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST (currently 10%).

“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

“Input Tax Credit” has the meaning given to that term by the GST Law.

“Losses” means all losses, liabilities, claims, actions, proceedings, demands, costs, charges or expenses (including legal costs and expenses).


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“OHS & E Policies“ means the occupational, health, safety and environment policy identified in Annexure A.

“Payment” means any amount payable under or in connection with this Contract including the Subcontract Sum, any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration.

“PPS Act“ means the Personal Properties Security Act 2012.

“Practical Completion” means the date on which Contractor certifies the Works are complete in accordance with the Contract or the date on which the Principal has certified that practical completion has been achieved pursuant to the Principal Contract, whichever is later.

“Principal” means the party acting as principal or equivalent under the Principal Contract.

“Principal Contract” means the contract between Contractor and the Principal as specified in Annexure A.

“Related Body Corporate“ has the meaning given to that term in section 50 of the Corporations Act 2001.

“Resourced Construction Programme“ means the programme to be prepared by the Subcontractor pursuant to Clause 15.1 detailing the labour requirement of the Works.

“Site” means the site or sites where the Works are to be performed as specified in Annexure A.

“Specification” means the specification for the Works and the specification documents including the documentation as provided for in Clause 17 hereof.

“Subcontractor’s Materials” means goods of all kinds supplied by the Subcontractor for incorporation in the Works including those goods, if any, specified in Annexure A.

“Subcontract Sum” means the amount specified in Annexure A payable for the Works.

“Tax Invoice” has the meaning given to that term by the GST Law.

“Taxable Supply” has the meaning given to that term by the GST Law.

“Term” means the period commencing on the date of this Contract and ending on termination of this Contract pursuant to Clause 19.

“Unfixed Materials” includes plant & equipment (not being consumables or small goods) that has been brought to the Site (and not prematurely) and is required for incorporation in the Works.

“Warranty Period“ unless otherwise specified in Annexure A, means in respect of: (a) the Subcontractor’s Materials, the greater of the period of 12 months from the Date of

Practical Completion, the warranty period (or equivalent) relevant to the Subcontractor’s Materials under the Principal Contract or the warranty period provided by the manufacturer; and


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(b) any defect in the Subcontractor’s Materials which has been remedied, the greater of a

further period of 12 months from the date Contractor confirms in writing that the defect has been remedied to its satisfaction and the defects liability period (or equivalent) relevant to the remedied defective Subcontractor’s Materials under the Principal Contract.

“Works” means all things and tasks which the Subcontractor is, or may be, required to carry out or do, to comply with, supply and perform the works described in Annexure A.

2 Subcontract

2.1 Contractor shall issue a purchase order to the Subcontractor prior to the Commencement Date. In consideration of payment of the Subcontract Sum by Contractor, the Subcontractor must carry out the Works in accordance with the Contract.

2.2 The Subcontractor is deemed to be fully aware of all the provisions of the Principal Contract

so far as they relate to the Works and of the rights, obligations and liabilities of Contractor under the Principal Contract. The Subcontractor agrees that the Principal Contract’s terms and conditions shall apply in full and are binding on the Subcontractor so far as they relate to the Works provided any discrepancy that arises between the Contract and the Principal Contract shall be resolved by Contractor directing the Subcontractor as to the interpretation to be adopted with respect to such discrepancy and such direction shall be binding on the Subcontractor.

2.3 If the Subcontractor finds an ambiguity, discrepancy or inconsistency in any of the

documents governing the Contract, the Subcontractor shall immediately give notice thereof to Contractor who shall direct the Subcontractor as to the interpretation to be followed to resolve any such ambiguity, discrepancy or inconsistency.

2.4 The Subcontractor’s right to recovery against Contractor in relation to matters covered under

the Contract does not exceed Contractor’s rights against the Principal in respect of Contractor’s claim for those matters and does not exceed the compensation (if any) received from the Principal by Contractor referable to those matters.

3 Obligations of Subcontractor 3.1 The Subcontractor must execute and complete the Works including the supply of the

Subcontractor’s Materials to the satisfaction of Contractor in a competent and professional manner and strictly in accordance with the Contract and the Works. The Subcontractor’s Materials must be fit for the purpose intended by Contractor or as may be stated in the Principal Contract. The parties intend that the Subcontractor is to perform the obligations under the Principal Contract as if it were a party to the Principal Contract instead of Contractor (but only insofar as they relate to the Works).

3.2 As a Subcontractor of Contractor, the Subcontractor must perform the Works including the

supply of the Subcontractor’s Materials in such a manner, at such times and to such standard as is required for Contractor to meet its obligations in relation to the Principal Contract or otherwise at law.

3.3 The Works shall be subject to the Defects Liability Period and the Subcontractor, at its own

cost, will carry out all steps necessary to remedy any defects in the Works as may be instructed by Contractor during the Defects Liability Period.

3.4 The Subcontractor’s Materials shall be subject to the Warranty Period and the

Subcontractor, at its own cost, will carry out all steps necessary to remedy any defects in the Subcontractor’s Materials as may be instructed by Contractor during the Warranty Period.


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3.5 Without limiting the Subcontractor’s obligations pursuant to the Contract, the Subcontractor

warrants that:

(a) it and its employees and agents are competent and possess the necessary skills to properly perform the Works;

(b) it will act in accordance with Accepted Industry Practice; (c) it will comply with all applicable laws and regulations; (d) it holds and will continue to hold all applicable licences necessary to perform the

Works; (e) the Subcontractor is the legal and beneficial owner of the Subcontractor’s Materials,

and following delivery of the Subcontractor’s Materials to the Site, title in the Subcontractor’s Materials shall pass to Contractor and no person other than Contractor holds, or is entitled to hold, any interest in the Subcontractor’s Materials; and

(f) the Subcontractor’s Materials are free from defects in design, materials and

workmanship, fit for their intended purpose, of merchantable quality and conform with the Specification and any applicable Acceptable Industry Practices.

4 Health, Safety and Environment 4.1 The Subcontractor shall comply with all applicable laws and regulations concerning health,

safety and environment during performance of the Works and, without limitation, comply with the OHS & E Policies. It shall comply with any health, safety and environment requirements imposed by the Principal on Contractor.

4.2 Without limiting the requirements in Clause 4.1, prior to commencing the Works on any Site,

the Subcontractor will provide to Contractor details and assessments for all hazardous products and materials used in the Works.

4.3 Without limiting the requirements in Clauses 4.1 and 4.2, prior to commencing the Works on

any Site, the Subcontractor will provide to Contractor details of any materials or process residues that the Subcontractor intends to use in the Works that may harm the environment. Contractor reserves the right to ask the Subcontractor to substitute any materials or process residues that Contractor considers will pose an unacceptable risk.

4.4 The Subcontractor will provide to Contractor risk assessments, method statements, and/or

site safety plans or the like for the Works as required by relevant safety authorities, regulations and applicable laws or when instructed by Contractor. If any employee of the Subcontractor suffers an injury while carrying out the Works or if the Subcontractor becomes aware that it is or may be in breach of this Clause 4 or any related regulation or law, then the Subcontractor shall immediately notify Contractor of such injury, breach or anticipated breach and the Subcontractor shall follow the directions (if any) of Contractor to avoid, remedy or mitigate such injury, breach or anticipated breach.

4.5 If in Contractor’s opinion the degree of site supervision by the Subcontractor’s supervisor or

any person employed by the Subcontractor is inadequate, or is incompetent or negligent, the Subcontractor shall upon the request in writing of Contractor remove such persons from the Works.


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4.6 Contractor may suspend the Works and order an immediate cessation of work if it believes

that the Subcontractor has failed or is failing to establish and maintain the required health, safety and environmental standards and procedures under this Contract. Any such suspension shall be at the Subcontractor’s cost and shall be without prejudice to the rights or remedies of Contractor in relation to any such breach by the Subcontractor of its obligations under the Contract.

4.7 The Subcontractor shall, at the Subcontractor’s cost, at all times comply with all applicable

laws and regulations concerning care and protection of the environment and shall obtain from the relevant environmental protection authorities all necessary consents applicable to the Works. In undertaking the Works, the Subcontractor shall take all reasonable steps to protect the environment (both on and off the Site) and to prevent damage and nuisance to people and property resulting from pollution, noise and other results of its operations and shall ensure that air emissions, surface discharges and effluent from the Site shall not exceed the values indicated in the consents (if any) and shall not exceed the values prescribed by law or in guidelines issued by the relevant authorities.

4.8 The Subcontractor is responsible for removing all debris, surplus or redundant materials

resulting from the performance of the Works at the conclusion of the Works and prior to handover to the Principal. Any loss or expense caused to Contractor from the Subcontractor not complying with this requirement will be a debt due to Contractor from the Subcontractor and may be deducted from any payments otherwise due to the Subcontractor.

5 Quality Assurance Plan

5.1 The Subcontractor shall have in place an adequate quality assurance plan and shall provide

to Contractor such quality assurance documentation as directed by Contractor and in accordance with the requirements of the Principal Contract.

6 Materials, Plant and Equipment 6.1 The Subcontractor shall be solely responsible for providing such tools and accessories as

may be necessary to carry out the Works (but not for incorporation in the Works) except for those items identified in Annexure A, which Contractor agrees to supply (“Contractor Equipment”). If Contractor Equipment is supplied to the Subcontractor by Contractor, the following provisions shall apply:

(a) Contractor agrees to supply on licence to the Subcontractor the Contractor

Equipment which shall be used by the Subcontractor at its sole risk and in this respect the Subcontractor hereby releases Contractor and shall indemnify and save harmless Contractor from and in respect of any claim, suit, action or demand which may arise out of or as an incident of the use by the Subcontractor of the Contractor Equipment;

(b) Contractor makes no representation or warranty in relation to the quality, fitness, or

suitability of the Contractor Equipment for any particular purpose; (c) the Subcontractor agrees to pay any costs expenses or damages associated with the

repair or replacement of any Contractor Equipment lost or damaged whilst in the control of the Subcontractor (fair wear and tear only excepted);

(d) the Subcontractor shall forthwith upon Practical Completion or sooner determination

of this Contract return the Contractor Equipment to Contractor.


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(e) in the event that the Contractor Equipment has not been so returned, Contractor may

at its election in its own right or by its representatives:

(i) come onto those premises on which the Contractor Equipment or any part thereof is stored or kept and in the name of and with the authority of the Subcontractor (which is hereby irrevocably given) remove such Contractor Equipment; or

(ii) deduct from any moneys payable to the Subcontractor or seek recourse to any

securities given by the Subcontractor to Contractor to satisfy Contractor’s claim for all damages and losses suffered by Contractor as a consequence.

6.2 The Subcontractor shall advise Contractor in sufficient time to allow delivery of materials,

plant and equipment and any special access equipment or any large items of plant which are to be supplied by Contractor including Contractor Equipment (“Free Issue Materials”) and/or by the Subcontractor and which are necessary for the Works.

6.3 The Subcontractor shall collect and retain all delivery advice and collection notes from

suppliers of Free Issue Materials in respect of the Works and send them to Contractor as directed by Contractor.

6.4 Where the Works requires the Subcontractor to incorporate and/or assemble Free Issue

Materials, the Subcontractor shall provide such financial guarantees or security to Contractor as Contractor may reasonably require.

6.5 The Subcontractor must notify Contractor in writing at least seven (7) Days prior to any

delivery of materials, plant and equipment to the Site.

7 Independent Contractor 7.1 For the purposes of the Contract, the parties acknowledge and agree that:

(a) the Subcontractor operates as and shall be deemed to have the status of an independent contractor;

(b) the Subcontractor, unless otherwise specifically authorised in writing by Contractor,

shall not act as or be an agent of Contractor or have the power to bind or commit Contractor in any manner;

(c) the Works shall be executed or provided at the Subcontractor’s own risk; (d) the Subcontractor shall not be entitled to Contractor’s employee benefits or the

protection offered to Contractor’s employees by law including, without limitation, any compensation for workplace injury or any applicable legislation as deals with personal injury, whether by accident or otherwise; and

(e) the Subcontractor shall be responsible for payment of and shall indemnify Contractor

against and hold Contractor harmless from any and all liability for payment of or retention of all payroll, income tax, workers compensation premiums or levies, compulsory superannuation contributions and any other deduction, withholding tax, levy, payment, contribution or tax whether or not required by law in relation to the provision of the Works.


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8 Working Drawings

8.1 The Subcontractor shall keep on Site at all times a set of marked up drawings showing deviations from the Drawings, working drawings, or other services for the purpose of issuing a record of drawings or a register of drawings.

8.2 The Subcontractor shall make all documents created in relation to the Works available for

inspection (and photocopying if necessary) by Contractor upon reasonable written notice from Contractor.

8.3 The Subcontract Sum includes the provision by the Subcontractor of all working drawings

necessary for the proper execution of the Works to the satisfaction of Contractor and the Principal.

8.4 The parties acknowledge and agree that Drawings issued for the aid of pricing are not

necessarily indicative of the installation when complete. 9 Industrial Relations 9.1 The Subcontractor agrees that all costs incurred by the Subcontractor as a result of any

industrial relations or award compliance matter shall be at the cost of the Subcontractor and the Subcontractor shall not seek any cost recovery for such amount against Contractor whatsoever.

10 Co-ordination 10.1 The Subcontractor shall appoint and keep throughout the duration of the Works, a

representative in charge of the Works on behalf of the Subcontractor. This person shall supervise and superintend the carrying out of the Works and ensure there is a full exchange of information with other trades. The representative shall be permanently available during the working hours of the Site and shall, if required, attend all meetings on Site. The suitability or otherwise of the person in charge may be determined by Contractor in its absolute discretion.

10.2 The Subcontractor must comply with the requirements relating to working on the Site

including but not limited to the working hours and working days in accordance with the Principal Contract.

10.3 The Subcontract Sum includes an allowance for co-operating with other subcontractors or

tradesmen, and co-ordination in accordance with the requirements of the Principal Contract. The Subcontractor will also be deemed to have included in the Subcontract Sum an allowance for deviations and modifications rising out of such co-ordination.

10.4 The Subcontractor is responsible for taking its own Site dimensions, checking runs and

levels and marking out for builders work and for obtaining all information necessary to carry out the Works.

10.5 The Subcontractor is responsible for its own builders work and for the removal of single

brick/blocks subject to approval by Contractor.


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10.6 The Subcontractor shall be deemed to have inspected the Site and to be satisfied regarding

local conditions or any other circumstances that may affect the Contract. The Subcontract Sum includes all necessary works required to take into account site conditions. Any failure to have made such inspection shall in no way relieve the Subcontractor from any obligation under the Contract or entitle the Subcontractor to claim for any additional expense whatsoever.

11 Testing and Commissioning

11.1 The Subcontractor shall demonstrate to the satisfaction of Contractor that all test and

measuring equipment to be used during the Works are accurate and are correctly calibrated.

11.2 The Subcontractor shall provide test certificates accompanied with a set of marked up drawings indicating the extent of any test. Adequate time must be given for tests, as set out in the Specification.

11.3 Without limiting any particular requirements in the Contract, the Subcontractor shall

demonstrate to Contractor, the Principal or its representatives that the Works are properly complete and/or installed, operate in the correct manner and are capable of functioning in accordance with the requirements of the Principal Contract.

12 Inclusions and Reliance

12.1 The Subcontract Sum includes the provision of all labour, supervision, administration,

materials including the Subcontractor’s Materials, plant, equipment, tools, consumables and apparatus, required for or to be reasonably inferred for the performance of the Works to the satisfaction of Contractor including but not limited to:

(a) the cost of all attendances (power, water, lighting, etc) other than those listed in

Annexure A; (b) all costs connected with acceptance, unloading, checking, handling, placing into

position, storage, protection and security of the Works materials including any Free Issue Materials and the Subcontractor’s Materials and Contractor’s Equipment;

(c) the cost of moving materials, plant, equipment or site administration areas, from time

to time, as required and directed by Contractor; (d) the provision of all apparatus for and the conduct of testing and commissioning of all

stages of the Works in accordance with the requirements of the Contract, Principal Contract and/or any relevant statutory regulations, codes of practice and/or the provision of all documentation related thereto;

(e) the execution of items of work necessarily inferred from the scope of the Works; and (f) all costs necessary to perform the Works in accordance with the specifications.


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12.2 The Subcontractor and Contractor agree:

(a) that Contractor-Supplied Information:

(i) has been or will be provided only for the Subcontractor's convenience; and

(ii) has not been and will not be relied upon by the Subcontractor for any purpose (including entering into the Contract or performing obligations under the Contract).

(b) Contractor does not:

(i) assume any responsibility or duty of care in respect of; or

(ii) warrant, guarantee or make any representation as to,

Contractor-Supplied Information including its accuracy, completeness or adequacy for the

purposes of the Contract or otherwise.

12.3 Contractor is not liable to the Subcontractor in contract, tort, equity, under statute or otherwise in connection with Contractor-Supplied Information or any other information provided to the Subcontractor by the Principal.

12.4 The Subcontractor is not entitled to rely upon Contractor-Supplied Information for or in

connection with the carrying out of work under the Contract or any other information provided to the Subcontractor by the Principal.

12.5 The Subcontractor must satisfy itself as to the accuracy, completeness and adequacy of

Contractor-Supplied Information and any other information provided to the Subcontractor by the Principal.

12.6 The Subcontractor has no claim arising out of or related to any Contractor-Supplied

Information or any other information provided to the Subcontractor by the Principal. 12.7 Contractor is not obliged to furnish any other information, materials, documents or

instructions except as expressly provided by the Contract. 12.8 Contractor-Supplied Information will remain the property of Contractor and must be returned

by the Subcontractor to Contractor on demand in writing. 12.9 The Contractor-Supplied Information must not, without the prior written approval of

Contractor, be used, copied or reproduced for any purpose other than conducting the work under the Contract.

13 Variations 13.1 The Subcontractor shall vary the Works as directed by Contractor and no variation shall

vitiate the Contract. Any claim or entitlement to payment for extra or varied work whether pursuant to or outside the Works shall be deemed to be waived and there shall be no right to compensation for it unless:

(a) instructions to vary the Works are given in writing by Contractor and clearly state that

they are an instruction to vary the Works. Written directions and clarifications may be given which are not variations to the Works. If the Subcontractor considers any direction or clarification is a variation to the Works, then they must notify Contractor in writing within seven (7) Days of receiving the direction or clarification; and


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(b) the Subcontractor shall submit a variation quotation, within fourteen (14) Days of

receiving the variation instruction from Contractor. The quotation shall be accompanied by a comprehensive take off priced in accordance with the schedule of rates or rates analogous thereto where applicable and shall include a detailed breakdown of any claims asserted for costs, extension of time and cost of compression to compensate for delay but nothing in this sub-clause shall imply a right to such claims. The Subcontractor will supply within seven (7) Days, if requested by Contractor, quotations, invoices and the like to support such variation price breakdown.

13.2 The price of a variation, if any, shall be determined by Contractor using the agreed schedule

of rates or otherwise such reasonable amounts as Contractor determines. Contractor will assess the variation quotation and either approve or reject it, advising the Subcontractor accordingly and the assessed amount shall be added to or deducted from the Subcontract Sum.

13.3 If the parties are unable to agree on the price of a variation then Contractor may at its

absolute discretion either:

(a) instruct the Subcontractor to proceed with the varied work and the price thereof shall be referred to dispute resolution pursuant to Clause 24, or

(b) arrange for the portion of the Works which is the subject of, or affected by, the

variation to be done by others and the Subcontractor shall have no claim whatsoever in respect of such omission from the Works.

13.4 The Subcontractor may not, without the written authority of Contractor, postpone execution

of a variation pending determination of its price. 13.5 Payment for a variation will not be made until Contractor has established that the

Subcontractor has complied with clause 13.1 and a Subcontract Sum adjustment advice has been issued in writing by Contractor.

13.6 Once a variation price has been submitted and agreed by Contractor in writing, that price

will be final and binding unless otherwise agreed in writing between the parties. No further claim for cost or loss or expense in connection with such variation will be permitted.

13.7 The Subcontractor will have no other entitlement to compensation for extra or varied work

whatsoever (including damages, quantum meruit, profit, or other materials, increased labour content or costs) irrespective of changes in detail or complexity and of the consequences of such variations.

13.8 If a variation directed by Contractor requires the omission of work:

(a) The Contractor may retain a third party to perform the part of the work omitted; and (b) The Contractor will have no liability to the Subcontractor for any resultant losses,

including loss of profit. 14 Payment

14.1 Fully detailed interim claims for payment on account of the Subcontract Sum, variations and

otherwise must be submitted in writing by the Subcontractor in accordance with Annexure A and must be broken down as required and specified by Contractor. Any claims received by Contractor after the time set out in Annexure A will be treated as received for the following month. If Annexure A does not specify when interim claims will be paid Contractor will pay the claims by the end of the month following receipt of a valid tax invoice.


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14.2 All claims for payment:

(a) in respect of Unfixed Materials on Site must be accompanied by a schedule detailing quantity and price;

(b) in respect of materials stored off Site will be considered only to the extent permitted

by the Principal Contract, and/or at Contractor’s absolute discretion and in either case, subject to the receipt of an appropriate financial guarantee or security satisfactory to Contractor; and

(c) must be accompanied by a declaration in a form reasonably acceptable to Contractor,

declaring that the Subcontractor has paid all relevant insurance premiums including but not limited to workers compensation insurance premiums, remuneration payable to its employees for work done in connection with the Works during the period covered by the claim for payment and all pay-roll tax in respect of such employees as request at the date of the statement.

14.3 The Subcontractor acknowledges that failure to complete and provide a declaration

pursuant to clause 14.2(c) to Contractor may result in Contractor withholding payment due to the Subcontractor. Any penalty payment whether under this Contract or otherwise does not apply to any payment withheld pursuant to this clause.

14.4 The Subcontractor’s claims for payment will be evaluated by Contractor and the valuation

will be determined in the sole discretion of Contractor. Any payment made by Contractor to the Subcontractor shall be payment on account only and shall not constitute acceptance of the Works or any part of them or of the value of the work undertaken.

14.5 If the Subcontractor believes it is entitled to additional costs, the Subcontractor must notify Contractor immediately in writing specifying the reasons why it believes it is entitled to additional costs. Failure to do so or to provide the necessary information when required by Contractor will result in rejection of any Subcontractor’s claim. Payment of any additional costs will be determined in the sole discretion of Contractor.

14.6 Any additional amount approved for payment by Contractor will be paid, less the retention amount specified in Annexure A to be retained until Practical Completion. On Practical Completion and subject to the other terms of this Contract, one half of the retention or other security amounts held by Contactor shall become due to the Subcontractor and the balance will be due after the end of the Defects Liability Period.

14.7 Contractor may operate an Australian Recipient Created Tax Invoice system for the

payment of GST. 14.8 The parties agree that all Payments exclude GST and, to the extent that GST is properly

chargeable in relation to the supply of the Works, Contractor shall pay such GST as an addition to payments otherwise due to the Subcontractor, provided that the Subcontractor has complied with all of its obligations under the GST Law, but not limited to, the provision of GST invoices to Contractor.

14.9 Contractor may make (in addition to any other retentions permitted by this Contract) any

deductions or withholdings from any payments made to the Subcontractor or its Subcontractors to the extent that is required to do so by law.

14.10 The Subcontractor warrants that it is registered for GST purposes if it is required to do so

under the GST Law. 14.11 Whenever any sum or sums of moneys are due and payable by the Subcontractor to

Contractor, the same may be deducted after notice to the Subcontractor from any sum then due, or which at the time thereafter may become due, to the Subcontractor.


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15 Programme 15.1 If requested, the Subcontractor shall prepare a Resourced Construction Programme which

shall be submitted to Contractor for approval and the Subcontractor shall commence and complete the Works in accordance with such Resourced Construction Programme. The Subcontractor must commence and complete the Works in accordance with the Construction Programme under the Principal Contract or as provided by Contractor to the Subcontractor, as directed by Contractor.

15.2 Contractor cannot guarantee the commencement date or continuity of work or accept any

responsibility, whatsoever, for any additional cost incurred by the Subcontractor resulting from delayed commencement or lack of continuity of work.

15.3 Failure to comply with the Construction Programme, as amended from time to time, will

render the Subcontractor liable to indemnify Contractor for all claims, costs, expenses and damages suffered or incurred by Contractor, including but not limited to any liquidated damages or charges imposed by the Principal against Contractor under the Principal Contract.

15.4 If the Subcontractor fails to bring the Work to Practical Completion by the Date for Practical Completion, the Subcontractor must pay to Contractor liquidated damages at the rate specified in Annexure A for every day or part thereof from the date Practical Completion was due to and including the actual date of Practical Completion. Such amount will be a debt due from the Subcontractor to Contractor and the Subcontractor acknowledges that it is a reasonable pre-estimate of Contractor’s loss. If no liquidated damages are identified in Annexure A or if they are identified as “not applicable”, “NA” or “nil”, then liquidated damages do not apply, and Contractor is entitled to recover common law damages from the Subcontractor.

16 Indemnity 16.1 The Subcontractor is liable for, and will indemnify and keep indemnified Contractor against

any Losses incurred or suffered by Contractor directly or indirectly either under the Contract or the Principal Contract (including for liquidated damages) arising out of or as a consequence of:

(a) the performance of the Works; (b) the failure by the Subcontractor to comply with its obligations under the Contract; (c) an Event of Default; or (d) the Subcontractor’s negligence or misconduct or the negligence or misconduct of any

of its employees, servants, agents or Subcontractors.

16.2 The Subcontractor’s liability to indemnify Contractor under Clause 16.1 shall be reduced proportionally to the extent that any act or omission of Contractor contributed to the Losses.


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17 Documentation 17.1 The Subcontractor shall within seven (7) Days from receipt of Annexure A submit the

following documentation to Contractor:

(a) a quantified schedule of rates that totals the Subcontract Sum; (b) all relevant product/material safety data sheets for all hazardous products/materials

and OH&S and environmental policies documentation; (c) all other documents referred to in Annexure A; and (d) proof of insurances required under the Contract and any additional insurance cover

as specified in Annexure A.

17.2 Submission of the Documentation or part thereof will constitute acceptance of this Contract. 17.3 The Subcontractor will supply to Contractor all records, Drawings, manufacturers’ literature,

as may be required for the operating and maintenance manuals when requested by Contractor to the satisfaction of Contractor or within two weeks of the Date of Practical Completion.

17.4 The Subcontractor will pay any additional costs incurred by Contractor or anyone else to

whom Contractor has a liability that results from incomplete or inaccurate information supplied by the Subcontractor.

17.5 The Subcontractor shall keep time sheets and such other records of the Works as

Contractor may require and shall at regular intervals or at intervals prescribed by Contractor, supply Contractor ongoing updates of the Works including such information relating to the Works as Contractor may require.

17.6 The Subcontractor shall make available to Contractor all records of whatsoever kind in

support of any claims arising out of the Principal Contract. 18 Assignment and Novation

18.1 The Subcontractor shall not assign or subcontract its obligations under the Contract, without

the consent in writing of Contractor being first obtained, which may be given or refused in Contractor’s absolute discretion.

18.2 Where consent to subcontract is given:

(a) the consent does not in any way relieve the Subcontractor from full and entire responsibility to duly and punctually observe, perform and comply with any of its obligations under the Contract; and

(b) each subcontract by the Subcontractor must be subject to the terms and conditions of

this Contract and the Principal Contract so far as they may apply. 18.3 For the purposes of Clause 18.1 hereof, an assignment or transfer by the Subcontractor will

include, where the Subcontractor is not an individual, any change in the effective control of the Subcontractor, including, without limitation, by way of transferring shares in the Subcontractor or its parent companies.

18.3 The Subcontractor shall execute a deed of novation of this Contract at the direction of

Contractor and will sign all documentation to effect this and agrees to authorise Contractor as its attorney for the purposes of the execution of any such document as may be necessary to effect any such novation of this Contract.


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19 Default and Termination 19.1 Contractor may in its absolute discretion and for any reason whatsoever terminate this

Contract on giving the Subcontractor seven (7) Days written notice of termination and in the event of a termination by Contractor, Contractor shall only be liable to pay the Subcontractor any monies properly due and owing to the Subcontractor at the time of termination less any amounts due by the Subcontractor to Contractor. The Subcontractor shall under no circumstances be entitled to any damages, loss, whether consequential or otherwise, including loss of profits, as a result of any termination of this Contract by Contractor.

19.2 The Subcontractor will be in default, if in the opinion of Contractor, the Subcontractor:

(a) fails to proceed with the Works, consistently, diligently, expeditiously and in a safe,

proper and competent manner; (b) substantially suspends work; (c) fails to commence any stage or any part thereof, or causes damage from poor

workmanship or lack of skill; (d) is otherwise in breach of the Contract; or (e) is deemed to be, or in the reasonable opinion of Contractor is, unable to pay its debts

as and when they fall due.

19.3 If the Subcontractor is in default, Contractor may give the Subcontractor notice in writing specifying the default and if such default continues for two (2) further Days, without prejudice to any other rights or remedies it may have, Contractor may terminate this Contract and/or instruct others to carry out the Works on behalf of the Subcontractor. All reasonable costs associated with such action shall become a debt due to Contractor from the Subcontractor and may be deducted from any payments otherwise due to the Subcontractor.

19.4 If the Principal Contract is terminated for any reason or permanently stopped, this Contract

shall also be terminated and will have no further force on and from the date of termination of the Principal Contract.

19.5 In the event of termination of this Contract for whatever cause or reason the liability of

Contractor to the Subcontractor shall not in any event exceed the Subcontract Sum. 19.6 Notwithstanding termination of this Contract, unless expressly provided otherwise, each

party shall remain liable for any antecedent breach and where an obligation has not been completed at termination, this Contract shall continue at Contractor’s election and each party’s obligation in relation to that Subcontract shall continue.

20 Insurance 20.1 The Subcontractor shall provide whenever reasonably required by Contractor confirmation

to Contractor that the Subcontractor:

(a) has effected or has the benefit of a current policy of insurance or has paid the appropriate levies in order to obtain the benefit of workers compensation coverage for any employees;


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(b) has effected public liability insurance for a sum not less than that required under the

Principal Contract or $10 million or such other sum as is reasonably nominated in Annexure A, whichever is greater.

(c) has effected or has the benefit of a current policy of contract works insurance for a

sum of not less than that required under the Principal Contract or such other sum as is nominated by Contractor in Annexure A, whichever is greater;

(d) has effected comprehensive and third party insurance covering all mechanically

propelled vehicles required to be licensed in the State or Territory where the Works are performed, for an amount not less than $10 million in respect of any one or series of accidents arising out of one event.

(e) has effected insurance covering the Subcontractor’s construction plant, including all

mobile equipment, tools, tackle, employees’ effects and the like, and all other property for which the Subcontractor is responsible, for an amount of not less than market value.

(f) has effected professional indemnity insurance for a sum not less than that required

under the Principal Contract or $5 million or such other sum as is reasonably nominated in Annexure A, whichever is greater.

(g) with the exception of workers compensation, has effected each policy on a per

occurrence basis with no aggregate limit and the deductible and other terms are satisfactory to Contractor.

20.2 Where the Subcontractor is an individual and is not entitled to obtain workers compensation

coverage, the Subcontractor shall indemnify and hold harmless Contractor from and against any claim by or on behalf of the Subcontractor or his/her estate arising out of or in connection with personal injury or death occasioned to the Subcontractor during the performance of the Works.

20.3 Unless otherwise authorised in writing by Contractor, commencing with the performance of

the Works, and continuing until the Works have been completely performed, the Subcontractor shall provide and maintain in effect insurance policies of the types and amounts indicated in this Clause on terms and with insurance companies approved by Contractor (such approval not to be unreasonably withheld) and the Subcontractor shall in any event indemnify and hold harmless Contractor in respect of any legal liability of either Contractor or the Subcontractor for death, personal injury or damage or loss to the property of any person (including Contractor) arising out of or in connection with the Works performed or to be performed hereunder by the Subcontractor or those for whom it is responsible or otherwise arising out of or in consequence of the negligence of the Subcontractor or those for whom it is responsible.

20.4 All policies of insurance required to be effected by the Subcontractor shall be endorsed to

provide that:

(a) underwriters and insurance companies of the Subcontractor shall not have any right of subrogation against Contractor;

(b) Contractor be named as an additional insured and such policies shall operate as

though Contractor were separately insured;

(c) there will be no recourse against Contractor for payment of premium.


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20.5 All policies of insurance shall be kept in full force and effect during the Term and in the case

of any policies written on a claims made basis then for a period of not less than six (6) years following termination of this Contract for whatever reason. The Subcontractor shall immediately give notice to Contractor in the event of cancellation, termination, non-renewal or any material alteration to any of the insurance policies.

20.6 In the event that an occurrence may give rise to a claim by the Subcontractor under any

policy of insurance effected or required to be effected under the Contract, the Subcontractor shall promptly notify Contractor and ensure that Contractor is kept fully informed of subsequent action and developments concerning that occurrence.

20.7 If the Subcontractor fails to arrange or maintain such insurance, Contractor may arrange the

insurances specified but is under no obligation to do so. The cost to Contractor of arranging and maintaining such insurance will be a debt due and owing by the Subcontractor to Contractor.

21 Intellectual Property and Confidentiality

21.1 All materials prepared or developed by the Subcontractor under the Contract including

documents, lists, calculations, maps, sketches, notes, reports, data, models, work papers, graphs and computer programs shall be or become the property of Contractor when prepared by or on behalf of the Subcontractor in connection with the Works, whether delivered to Contractor or not and shall, together with any materials furnished to Contractor by the Subcontractor hereunder, be delivered to Contractor upon request and in any event upon termination of this Contract.

21.2 The Subcontractor will assign to Contractor in writing, in a form satisfactory to Contractor, all

the right, title and interest of the Subcontractor in and to all intellectual property rights in the materials referred to in Clause 21.1.

21.3 The Subcontractor acknowledges that Contractor owes strict duties of confidentiality to the

Principal under the Principal Contract. Confidential information includes any information that the Subcontractor may acquire in the course of performing the Works and information about procedures, business, customers and suppliers of Contractor and its Related Bodies Corporate. The Subcontractor acknowledges that unauthorised disclosure of confidential information could cause Contractor and/or its Related Bodies Corporate substantial loss and damage.

21.4 The Subcontractor will not at any time during the Term or thereafter (except in the course of

carrying out the Contract or as required by law) use or divulge or permit or assist anyone else in any way to use or disclose any confidential information whatsoever.

21.5 The Subcontractor agrees that it will not copy or permit or assist anyone else to copy any

confidential information other than as required to carry out its obligations under the Contract. 21.6 The Subcontractor agrees to return, on request by Contractor, any confidential information

in the possession or control of the Subcontractor, except where Contractor agrees otherwise.

21.7 The Subcontractor shall indemnify Contractor in respect of any Losses caused by the

Subcontractor’s breach of this Clause 21. 21.8 The Subcontractor shall execute any secrecy undertaking or confidentiality deed upon

request by Contractor. 21.9 The provisions of this Clause 21 shall survive termination of this Contract.


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22 Security 22.1 The Subcontractor shall provide security for the performance of the Works (by way of

unconditional bank guarantee, cash retention or otherwise) in the manner and amount as the security provided by Contractor under the Principal Contract or as specified in Annexure A, at Contractor’s sole election.

22.2 Notwithstanding any provision to the contrary, Contractor shall not be obliged to make any

payments under this Contract, whether or not such payments are due, prior to receipt of the security pursuant to Clause 22.1.

22.3 All charges incurred by the Subcontractor in obtaining and maintaining the security pursuant

to Clause 22.1 shall be met by the Subcontractor.

23 General

23.1 A provision of or a right created by this Contract may not be waived or varied except in writing signed by the party or parties to be bound.

23.2 Any provision in this Contract which is invalid or unenforceable in any jurisdiction will, for the

purposes of that jurisdiction, be read down, if possible, so as to be valid and enforceable or otherwise severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of the remaining provisions of the Contract or of that provision in any other jurisdiction.

23.3 This Contract shall be construed in accordance with the laws of the state, territory or country

where the Principal Contract is made. 23.4 Any notice or other communication under this Contract:

(a) must be in writing addressed to the address of the parties specified in Annexure A or

such other address as is notified in writing by a party to the other party from time to time;

(b) will be deemed to be duly received by or served on the addressee:

(i) if by delivery in person, when delivered;

(ii) if by post, seven (7) Days from and including the date of postage; (iii) if by facsimile transmission when the machine on which the notice or other

communication is sent reports that it has been transmitted;

(iv) if by email when sent from the senders computer provided that no undelivered response is received,

and if delivery or receipt of a notice or other communication occurs on a day on which business is not generally carried on in the place to which the notice or communication is sent or is later than 5pm (local time), it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in that place.

23.5 Where for any reason a purchase order is generated containing pre-printed, pro forma or

otherwise automatically generated terms and conditions, such terms and conditions shall be disregarded for the purposes of this Contract.


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23.6 This Contract:-

(a) contains the entire agreement and understanding between the parties on everything connected with the subject matter of the Contract; and

(b) supersedes any prior agreement, understanding, correspondence, documentation,

representations, warranties, promises, statements, negotiations, or discussion on anything connected with that subject matter including the Subcontractor’s quotations or terms and conditions.

23.7 To the extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW),

or the equivalent legislation in the relevant State or Territory, is excluded in relation to all rights, obligations and liabilities under or in connection with this Contract whether such rights are enforced as breach of contract or tort.

24 Dispute Resolution 24.1 Any dispute between the parties arising out of, or in connection with, the Contract must in

the first instance be referred to the General Manager of Contractor (or that person’s nominee) and the General Manager of the Subcontractor (or that person’s nominee) for resolution.

24.2 Any such dispute will be heard by them in such a manner as they shall determine. Any

determination of the dispute shall be made in writing and signed by both General Managers (or their respective nominees).

24.3 Any such determination is binding on the parties. 24.4 If the General Manager (or their nominees) are unable to resolve any dispute referred to

them within ten (10) Days from the date of its referral (or other such period as the parties agree), each party is entitled to proceed to litigation of the dispute before a court having jurisdiction to hear and decide the dispute in question.

24.5 Pending resolution of any dispute between the parties, each party must continue to perform

its obligations under the Contract. 24.6 A party may commence court proceedings relating to any dispute arising from the Contract

at any time where that party seeks urgent interlocutory relief. 24.7 To the extent permitted by law, the parties agree that the dispute resolution process

contained in this Clause 24 shall apply to the exclusion of any adjudication process set out in any security for payment legislation governing construction or building contracts (whether such legislation is enacted prior to or on or after the date of this Contract). The parties shall agree prior to any such adjudication process (but subsequent to the relevant dispute arising) on how the costs and expenses of such process are to be apportioned. It is acknowledged that the Subcontractor shall be liable for Contractor’s reasonable costs and expenses in such adjudication (including all reasonable legal costs and expenses incurred by Contractor) should the decision of any adjudication be awarded against the Subcontractor and Contractor shall be liable for the Subcontractor’s reasonable costs and expenses in such adjudication (including all reasonable legal costs and expenses incurred by the Subcontractor) should the decision of any adjudication be awarded against Contractor.


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25 Force Majeure 25.1 Subject to clauses 25.2 and 25.3, a party will be excused from performing its obligations

under the Contract to the extent that a Force Majeure event prevents or delays that party’s performance of such obligations (other than the obligation to pay money) provided that, as soon as reasonably possible after the beginning of the Force Majeure the affected party gives a notice to the other party which complies with the following:

(a) specifies the obligations that the party cannot perform; (b) fully specifies the nature of the Force Majeure; (c) estimates when the Force Majeure will cease; and (d) specifies the measures that are to be adopted to remedy or abate the Force Majeure.

25.2 The Subcontractor will not be:

(a) relieved of its obligation to achieve Practical Completion by the Date for Practical Completion; or

(b) entitled to an extension of time to the Date for Practical Completion, except as expressly provided under the Principal Contract.

25.3 The party prevented from performing its obligations due to a Force Majeure must:

(a) remedy the Force Majeure to the extent reasonably practicable and resume performance of the obligations as soon as reasonably possible; and

(b) take all action reasonably practicable to mitigate any liabilities that may be suffered by the other party as a result of the failure to carry out the obligations imposed by this Contract.

25.4 If the Force Majeure proceeds for a continuous period of thirty (30) days or for successive

periods totalling more than thirty (30) days in a sixty (60) day period Contractor may, at its absolute discretion, terminate the Contract and the Subcontractor shall be entitled to its direct costs reasonably incurred as a result of the termination.

26 Design Liability 26.1 In the event that Contractor requests that the Subcontractor undertakes any design with

respect to the Works then the following shall apply:

(a) The Subcontractor agrees to execute the Works in a proper and workmanlike manner and shall complete the Works in accordance with the Design Documents and the Design Obligations as are provided for in the Contract.

(b) The Subcontractor agrees and undertakes that it has the necessary skill and

knowledge and has made sufficient and due inquiry to enable the Subcontractor to complete all of the Works including any installation and including the production and/or duplication of any Design Documents so as to complete the Works in accordance with the requirements of the Principal Contract whether specified in this Contract or not and warrants that the completed Works shall be fit for their stated or intended purpose.


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27 Contractor Liability and Exclusion of Consequential Loss 27.1 The total liability of Contractor to the Subcontractor shall not in any event exceed in the

aggregate an amount equal to the Subcontract Sum. 27.2 Notwithstanding any provisions to the contrary contained in this Contract, whether express

or implied, neither party shall be liable to the other, whether in contract, tort, strict liability or otherwise, for:-

(a) any loss of production, (b) loss of use, (c) loss or alteration of data, (d) loss of goodwill or reputation, (e) loss of savings or profit, (f) loss of revenue, (g) loss of contract,

or for any indirect or consequential loss or damage suffered by the other party.

28 Guarantee 28.1 In consideration of Contractor agreeing to appoint the Subcontractor under this Contract,

each Guarantor unconditionally and irrevocably guarantees by way of continuing obligation, to Contractor the due and punctual performance by the Subcontractor of all its obligations under the Contract. The liability of each Guarantor under this guarantee is not in any way affected in a manner prejudicial to Contractor by any granting of time, waiver or forbearance to sue by Contractor or by any act, omission, matter or circumstance of law whereby the Guarantor as surety only would, but for the provisions of this clause, have been released from liability.

28.2 If there is more than one Guarantor, the liability of each Guarantor shall be joint and several. 29 Application of Personal Properties Securities Act 2012 29.1 The parties agree that the PPS Act does not apply to the Contract or to any transactions

contemplated under the Contract. The parties further agree that the statutory right of a party to exercise rights over security (contemplated by the PPS Act) provided under the Contract is dispensed with. Additionally the parties preserve the confidentiality obligations under the Contract as they exist between them as they relate to the security (contemplated by the PPS Act) provided under the Contract, if any.

30 National Code of Practice for Construction Industry 30.1 The Subcontractor must comply with the National Code of Practice for the Construction

Industry (“the Code”) and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry (“Implementation Guidelines”). Copies of the Code and the Implementation Guidelines are available at www.workplace.gov.au/building.


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30.2 Compliance with the Code or the Implementation Guidelines shall not relieve the

Subcontractor from responsibility to perform the Contract, or from liability for any defect in the works arising from compliance with the Code or the Implementation Guidelines.

30.3 Where a change in the Contract is proposed and that change would affect compliance with

the Code or the Implementation Guidelines, the Subcontractor shall submit a report to the Commonwealth specifying the extent to which the Subcontractor’s compliance with the Code or the Implementation Guidelines will be affected.

30.4 The Subcontractor shall maintain adequate records of the compliance with the Code and

Implementation Guidelines by:

(a) the Subcontractor; (b) its sub-subcontractors; and (c) its Related Entities.

30.5 The Subcontractor shall permit the Commonwealth, including a person occupying a position

in the Office of the Australian Building and Construction Commissioner, full access to construction sites or places covered by the Code and Implementation Guidelines to:

(a) inspect any work, material, machinery, appliance, article or facility; (b) inspect and copy any record relevant to the Works the subject of this Contract; (c) interview any person; (d) request a party to this Contract to produce a specified document within a specified

period, being not less than 14 days in person, by fax or by post;

as is necessary to allow validation of its progress in complying with the Code and Implementation Guidelines.

30.6 For the avoidance of doubt, clause 30.5 applies in relation to the Subcontractor’s privately

funded construction sites. 30.7 The Subcontractor agrees to require that its sub-subcontractors and its related entities

provide the Commonwealth or any person authorised by the Commonwealth, including a person occupying a position in the Office of the Australian Building and Construction Commissioner, with access to:

(a) inspect any work, material, machinery, appliance, article or facility; (b) inspect and copy any record relevant to the Works the subject of this Contract; (c) interview any person; (d) request a party to this subcontract to produce a specified document within a specified

period, being not less than 14 days in person, by fax or by post. 30.8 The Subcontractor shall not appoint a sub-subcontractor, consultant or supplier in relation to

the Works where the appointment would breach a sanction imposed in relation to the Code . 30.9 The Subcontractor shall ensure that all sub-sub-contracts impose obligations on the sub-

subcontractors equivalent to the obligations under this clause.


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31 Special Conditions 31.1 The additional provisions, if any, set out in Annexure A (the Special Conditions) form part

of, and apply to the Works performed in relation to, that Annexure A. 31.2 If there is any inconsistency between the Special Conditions and any provision of this

Contract then the Special Conditions will prevail to the extent of the inconsistency but only with regard to the Works under that Annexure A.

Executed as an agreement Executed by Contractor:

Authorised Representative

Witness

Print Name Print Name Executed by [Insert Subcontractor Company]:

Director Signature

Director/Secretary Signature

Print Name Print Name


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ANNEXURE A (Clause 2.1)

To: [INSERT DETAILS] (“Subcontractor”)

This Annexure A is issued pursuant to the Contract dated [insert date] for the performance of Works by the Subcontractor as described below and in associated documentation referred to below. Unless defined in this Annexure A, terms that have been defined in the Contract have a corresponding meaning when used in this Annexure A.

1 Date of Issue of Annexure A:

2 Purchase Order Reference Number:

3 Works: [here describe the Works]

4 Commencement Date:

[specify whether required and if required by

when]

5 Construction Programme (including Date

for Practical Completion):

[specify Date for Practical Completion]

6 Principal Contract: [here insert name of Principal Contract, parties

and date]

7 Site: [here set out the physical address of the site or

sites where the Works are to be performed]

8 Subcontract Sum: AUD

9 Defects Liability Period for Works: as per period set out in the Contract

as per Principal Contract

other

(delete two, and if “other” complete details)

10 Subcontractor’s Materials:

11 Warranty Period for Subcontractor’s

Materials:

as per period set out in the Contract


other


12 Contractor Equipment (not to be

incorporated in the Works):

(Clause 6.1)


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13 Free Issue Materials ( to be incorporated

in the Works):

(Clause 6.2)

14 Attendances not included in the

Subcontract Sum:

(Clause 12.1 (a))

15 The time for making progress claims:

(Clause 14.1)

16 The time in which Contractor will pay the

Subcontractor its progress claims:

(Clause 14.1)

17 Liquidated damages:

(Clause 15.4)

18 Documentation:

(Clause 17 (c) )

Schedule of rates

[here specify all documentation]

19 Drawings: [here specify the drawings]

20 Specification: [here specify the Specification]

21 Other documents

22 Insurance requirements and the amount

of Insurance:

(Clause 17.1 (d) and Clause 20.1)

as per Clause 20 of these terms and

conditions


other


23 The amount and form of security or cash

retentions:

(Clause 22.1)

24 OHS & E Policy:

25 Design Liability: [specify whether applicable or not. If

applicable, professional indemnity insurance is

likely to be required]

26 Other Conditions:

27 Special Conditions