CONTRACT AGREEMENT, PRIVACY POLICY

RECITAL

1. Contractor has entered into the Head Contract with the Customer to perform the works more particularly described in that contract.

1. Contractor from time to time over the period defined by this Document shall forward work requests to the Subcontractor for acceptance based on the terms of this Document.

1. Upon the acceptance of a work request the Subcontractor agrees to perform all of its obligations under these Subcontract Terms in accordance with its terms.

1. Contractor agrees to pay the Subcontractor and perform its other obligations in accordance with this Subcontract Terms.

1. The Subcontract between the parties shall constitute the Subcontract Terms and any accepted Contractor works request.

OPERATIVE PART

1. The Subcontract Terms and the Subcontract

The Subcontract Terms comprise:

1. This agreement;
2. The Contractor work request;
3. Schedule 1 The Subcontractor’s Details;
4. Schedule 2 The Subcontract Sum;
5. The Preferred Subcontractor Terms
6. Special Conditions (if any); and
7. Any document expressly incorporated by reference into the Documents.

The Subcontract between the parties shall constitute the Subcontract Terms and the Contractor works request.

2. The Works

The Subcontractor shall do all things necessary and ancillary for each work request,

1. within the period stated in the work request;
2. at the lump sum or schedule of rates as set out in the work request less the Commission Rate as set out in Schedule 2;

 in order to carry out and complete the Works, as required and set out in the work request.

3. The Subcontract Sum

4. Reliance by Contractor

The Subcontractor has represented to Contractor that it has the necessary skill, personnel and equipment to perform the work under the Subcontract and acknowledges that Contractor has relied upon this representation in entering into this Subcontract.

5. What is Personal Information

When used in this policy, the term “personal information” has the meaning given to it in the Act. In general terms, it is any information that can be used to personally identify you. This may include (but is not limited to) your name, age, gender, postcode and contact details (including phone numbers and email addresses) and possibly financial information, including your credit card, direct debit or PayPal account information. If the information we collect personally identifies you, or you are reasonably identifiable from it, the information will be considered personal information.

6.What Personal Information do we collect and hold

We may collect the following types of personal information:

• name;
• mailing or street address;
• email address;
• telephone number;
• age or birth date;
• profession, occupation or job title;
• details of the products and services you have purchased from us or which you have enquired about, together with any additional information necessary to deliver those products and services and to respond to your enquiries;
• any additional information relating to you that you provide to us directly through our websites or indirectly through use of our website or online presence through our representatives or otherwise;
• information you provide to us through our service centre, customer surveys or visits by our representatives from time to time.

The Subcontract Terms shall apply to all future work requests as agreed between the parties.

PREFERRED SUBCONTRACTOR

TERMS

Subcontract

The Subcontract Sum shall be the sum stated in the Subcontract Agreement or, where Contractor has accepted rates, the sum ascertained by multiplying the measured quantity of each section or item of work actually carried out under the Contract by the rate excepted by Contractor for the section or item adjusted by any additions or deductions pursuant to the Contract. The Subcontract Sum shall be payable to the Subcontractor upon satisfactory completion of the work, subject to compliance with the terms of this Agreement.

The Subcontract shall be deemed to have been entered into by both parties upon commencement of the Works, notwithstanding that one party, or both parties, have not signed the document.

Works

The work contracted for by the Subcontractor shall be performed in accordance with the documents provided by Contractor, in accordance with any relevant Australian Standard, BCA and in a proper and workmanlike manner. All materials supplied shall comply with the requirements of this Contract and shall be fit for purpose. The Works shallbe deemed to include any sundry and associated works required to properly meet the intent of the Subcontract documents.

The Subcontractor warrants that in addition to any other warranty given or obligation assumed:

• that it is familiar with the conditions affecting construction activities in the area in which the Works are to be carried out;
• that it has thoroughly inspected the Site, including any prior work, existing structures, materials and conditions;

• that it has allowed for and accepts the liability for all risks hazards and difficulties including, whatsoever, materials handling and deliveries, traffic management, adjacent properties, site safety and public safety;

• that it shall perform its obligations continuously and in the most expeditious and economical manner and using industry best practices;

• that the work shall be performed in a proper and workmanlike manner and in accordance with highly competent standards of the respective trades and in accordance with the Subcontract Documents set out in the Subcontract;

• that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work shall result, to the extent of the work conducted by the Subcontractor, in a dwelling that is reasonably fit for occupation as a dwelling; and

 (k) that the work shall be performed in accordance with, and shall comply with the requirements of all statutes, subordinate legislation and persons exercising statutory power relating to the work under the Subcontract.

Personnel & Directions

At all times while work is being performed in respect of this Agreement the Subcontractor shall supervise that work or shall ensure that a competent supervisor is in attendance and is authorized to take and undertake such instructions as are issued by Contractor in respect of the Works.

The Subcontractor shall (at its cost unless otherwise expressly provided) comply with any direction given by Contractor. If Contractor has given a direction pursuant to the Subcontract then the direction shall not be disputed unless a notice of dispute in accordance with the Subcontract is given to Contractor within 5 days of the direction.

Contractor may direct the Subcontractor to remove from the site or from any activity on the site any person whom Contractor considers to be incompetent, negligent or guilty of misconduct. The person shall not thereafter be employed on the site or on activities connected with the Works without the prior written approval of Contractor.

Commencement and Completion

The work shall be commenced and completed to the satisfaction of the Customer and the Contractor in accordance with Schedule 1 and any programme (or times) issued by Contractor. The Subcontractor acknowledges that it has carefully perused any programme for the project and warrants that it is able to and shall perform its obligations consistently with any such programme and will, in any event, complete the works under the Subcontract by the Date for Completion as set out in Schedule 1 as adjusted by this Clause 4.

Completion of the Works shall include provision to Contractor of warranties, commissioning documents, etc.

The Subcontractor shall co-ordinate its works with that of Contractor and any other Subcontractors on the site and shall inform Contractor and the Customer within 2 hours of the commencement of any delay which will, or is likely to, affect the capacity of the Subcontractor to complete the works and shall, where the Subcontractor has done everything possible to limit the extent and duration of the delay and the delay has been caused by a breach of the Subcontract by Contractor or a suspension directed under the Subcontract or a variation, be entitled to a reasonable extension of the time provided for Completion of the Works. If no notice is given in accordance with this clause, then the Subcontractor's right to seek any extension of time shall be deemed to be abandoned.

Any claim made under this clause must include the facts on which the claim is made, the cause of delay, the period during which the cause of delay existed or is expected to exist, the critical activity delayed, how the cause of delay impacted or is expected to impact upon the critical activity delayed and the measures which the Subcontractor has adopted or proposes to adopt to overcome or minimize the consequences of the cause of delay.

If at the time of a notice under this clause the duration of the cause of delay, the delay or the impact of the delay are not known then the Subcontractor shall in the notice state what details are not yet known and shall serve a further notice or notices promptly when those details are known.

Contractor may, at any time and for any reason, grant an extension of time to the Subcontractor in respect of the Works.

The Subcontractor shall not be entitled to recovery of cost or damages in the event of any delay.

Where the Subcontractor is delayed by concurrent events, then for the purposes of assessing the Subcontractor’s entitlement to an extension of time under this Subcontract, where the concurrent events entitle the Subcontractor to extensions of time the dominant event shall be deemed to be the event causing the delay, and where the concurrent events do not entitle the Subcontractor to an extension of time then the concurrent event not entitling the Subcontractor to an extension of time shall, for the length of its duration, be deemed to be the dominant event and the Subcontractor shall not be entitled to any extension of time.

Subletting and Assignment

The Subcontractor shall not without the written consent of Contractor assign this Subcontract or any payment under this Subcontract or any interest in the Subcontract or in such payment. Contractor may upon written notice to the Subcontractor assign its rights and entitlements under this Subcontract to the Customer or its nominee.

Costs for Delay

In the event that Contractor pays damages, including liquidated damages, relating to late completion of the Head Contract, and those delays were caused by the Subcontractor, then that amount paid by Contractor may be deducted from any moneys which may then be or thereafter become payable to the Subcontractor by Contractor, and any deficiency may be recovered by Contractor as a debt due to Contractor by the Subcontractor on an indemnity basis.

Notwithstanding any other provision in this Subcontract, Contractor may, either by itself or by a third party, carry out an obligation under the Subcontract which the Subcontractor was obliged to carry out but which it failed to carry out within the time required in accordance with the Subcontract. The loss, costs, expenses and damages suffered or incurred by Contractor in so carrying out such a Subcontract obligation shall be a debt due from the Subcontractor to Contractor including an overhead charge of up to 15%.

Discrepancies

In the event of any ambiguity or inconsistency between the documents being discovered by the Subcontractor, it shall notify Contractor and seek instructions. Contractor shall issue instructions based on the following order of priority – Minor Works Subcontract document, then the letter of acceptance issued by Contractor, the specification and drawings shall then be read as complementary documents and what is required by or contained in one of them shall be as binding as if required by or contained in all of them. Any other documents shall then take priority in the order in which they appear in Schedule 1.

Notwithstanding the foregoing, in case of any difference between scaled dimensions and figures on the drawings, the figures shall prevail. In case of any difference between contour lines and spot levels on the drawings, the spot levels shall prevail. Larger scale drawings and those drawn for a specific purpose shall prevail over smaller scale drawings and those drawn for a general purpose. If electronic copies of drawings are provided then hard copy drawings and dimensions, contours or spot levels shown on those drawings shall prevail.

Payment – refer to SC8

GST

If GST is imposed on any supply made by the Subcontractor under the Subcontract, Contractor must pay, in addition to any (GST-exclusive) consideration for the supply payable by Contractor under any other clause of the Subcontract, an additional amount calculated by multiplying the prevailing GST rate by that (GST-exclusive) consideration.

Following issue of the Payment Schedule in accordance with Clause 8, the Subcontractor shall provide to Contractor, within 5 days, an invoice for the amount set out in the Payment Schedule.

If the Subcontractor at any time ceases to be registered, Contractor may at its sole option and discretion, by written notice to the Subcontractor, terminate the Subcontract. In the event of termination, the rights and liabilities of the Parties shall be in accordance with Clause 20.

Insurances

Contractor shall insure the Works under the Subcontract against loss or damage resulting from any cause whatsoever. In the event of a claim against that insurance by the Subcontractor, the Subcontractor shall pay any excess applicable.

The Subcontractor shall insure against personal accident and any legal liability, loss, claim or proceeding whatsoever arising at Common Law or by virtue of any statute relating to Workers Compensation to or by any person employed by the Subcontractor or for whom the Subcontractor is responsible and the Subcontractor shall before commencement of these Works furnish to Contractor evidence that such insurances are valid and shall remain valid for the duration of the Agreement.

The Subcontractor effect a Public Risk policy for an amount no less that $10,000,000 and the Subcontractor shall before commencement of these Works furnish to Contractor evidence that such insurances are valid and shall remain valid for the duration of the Agreement.

Indemnity

To the maximum extent permitted by law the Subcontractor indemnifies the Contractor against any liability, loss, claim, cost or expense (including financial loss, liability under the Head Contract and all legal fees and expenses and costs of investigation and assessment) arising out of or in connection with:

• a breach of the Subcontract (excluding failure to complete the works in accordance with the Subcontract) of other legal duty by the Subcontractor: or
• the death or personal injury of any employee of the Subcontractor or any party for whom the Subcontractor is responsible;
• to the extent caused by any act omission or breach of the Subcontractor or its subcontractors, employees, agents, suppliers and contractors:

• any loss of or damage to any property real or personal (including public utilities and services and property on or adjacent to the Site);
• any claim by third parties (including contractors and subcontractors) carrying out work on the Site for costs associated with any delay or disruption to the progress of their works;
• without limiting paragraphs (b) and (c)(ii) above, any claim or proceeding in respect of personal injury to or death of any person;
• contamination from any source whatsoever; and
• Moral Rights;

• the suspension of any work by anyone engaged by the Subcontractor (other than a suspension directed by the Contractor under this Subcontract which is not caused by the Subcontractor or any party for whom the Subcontractor is responsible);
• the employment by the Subcontractor of any of its employees or agents in the performance of the Works;
• any claim against the Contractor by a third party in connection with the acts, omissions or entitlements of the Subcontractor’s employees of agents; and
• any designs, design materials or documents provided by the subcontractor or its methods of working infringing or allegedly infringing any patent copyright registered design trademark name or other protected right.

If a breach of the Subcontractor of any other obligation by the Subcontractor is a cause of the Contractor becoming liable to pay, under the Head Contract, any additional amount or damages (liquidated or otherwise) then in addition to any other remedy the Contractor has, the Subcontractor shall indemnity the Contractor against all such liability and loss in relation to or arising as a consequence of that liability provided that if the Subcontractor is not the sole cause of the Contractor’s liability the Subcontractor shall only indemnify the Contractor in proportion to the Subcontractor’s responsibility as determined by the Contractor.

Variations

The Subcontractor shall execute any variation directed by Contractor. If the Subcontractor considers that any direction is a variation then, unless it is stated in writing by Contractor to be a variation, the Subcontractor shall, in writing, notify Contractor within 5 days of the direction that the Subcontractor considers the direction to be a variation and in any event prior to commencing the work the Subcontractor considers to be a variation. If the Subcontractor fails to notify Contractor in accordance with this paragraph then the Subcontractor shall have no claim and hereby releases Contractor from any claim with respect to or in connection with the variation.

The Subcontractor shall have no claim with respect to or in connection with the addition or deletion of work other than as expressly provided in this Clause 12. No variation shall be invalid or constitute a repudiation of the Subcontract on the ground of the extent of work deleted by the variation.

Contractor may, by variation, delete work and have that or similar work carried out at any time by others. The Subcontractor shall have no entitlement to time or money on the ground that others carry out work deleted by variation.

Contractor may instruct the Subcontractor to carry out work by daywork. Where so instructed the Subcontractor shall each day record particulars of all resources used for the execution of the daywork and furnish those details to Contractor daily. Contractor may direct the manner in which matters are to be recorded.

Disputes

Should any dispute arise between the parties at any time in relation to any matter arising from this Contract, such dispute is hereby submitted to mediation, and failing mediation, to Court. The parties hereby agree that, upon service on the other party of a notice identifying the matters in dispute, any such dispute shall, unless the parties can agree upon a mediator, be referred to a mediator nominated by the President for the time being of the Institute of Arbitrators and Mediators Australian (IAMA) or his nominee. If any dispute is not settled within 14 days of the appointment of a mediator, then either party may refer the matter to Court.

Either party may write to the IAMA advising of the matters in dispute and requesting the nomination of an mediator. A copy of the Contract and an amount of $500.00 to cover costs must be included with any such request.

Neither party shall commence any proceeding until it has deposited to the trust account of Contractor’s solicitor, as security for costs, an amount equal to 10% of the amount claimed in the proceedings. The amount so deposited shall be dealt with in accordance with the agreement of the parties, or in default of agreement, the order of the court or direction of an expert appointed under this Subcontract.

Breach and Termination

If the Subcontractor fails to perform or delays performance of any obligation under this Subcontract within seven (7) days of issue of a notice to do so by Contractor, then Contractor may but shall not be obliged to perform or retain others to perform the obligation on the Subcontractor’s behalf and recover all direct and indirect costs and losses of so doing from the Subcontractor as a debt due to Contractor including an overhead charge of up to 15%.

If the Subcontractor's default causes Contractor reasonably to consider that additional supervision or other preventive measures are necessary then Contractor may recover from the Subcontractor the costs of these additional measures adopted by Contractor. In this paragraph, ‘additional' means additional to those which would have been required if the Subcontractor had performed the Subcontract without breach.

Subcontractor Default

If the Subcontractor commits a substantial breach of this Subcontract then, without limiting any other right of Contractor, upon breach or repudiation by the Subcontractor, Contractor may by notice in writing issue a notice entitled “Notice of Subcontractor Default”. Upon giving such a notice Contractor may suspend payments to the Subcontractor until the respective entitlements of the parties, consequent upon the service of that notice, are agreed or determined.

If the Subcontractor fails to show reasonable cause why Contractor should not exercise a right under this clause then Contractor may, by notice in writing to the Subcontractor:-

• take out of the hands of the Subcontractor the whole or part of the work remaining to be completed; or

• terminate the Subcontract.

The Notice of Subcontractor Default shall:-

• state that it is a notice under Clause 15 of the Subcontract Terms;

• specify the alleged substantial breach;

• require the Subcontractor to show cause in writing why Contractor should not exercise a right referred to in Clause 15.
• specify the time and date by which the Subcontractor must show cause (which time shall not be less than 7 clear days after the notice is given to Contractor;

• specify the place at which cause must be shown.

If Contractor exercises a right set out in Clause 15 the Subcontractor shall not be entitled to any further payment in respect of the work taken out of the hands of the Subcontractor unless a payment becomes due in accordance with Clause 17.

Substantial Breaches

For the purposes of Clause 15, substantial breaches by the Subcontractor include but are not limited to:

(a) Suspension of work;

• Failure to proceed with due expedition and without delay;

(c) Failure to use the materials or standards of workmanship required by the Subcontract;

• Failure to provide evidence of insurance as required by the Subcontract;

• Failure to comply with a direction of Contractor issued under a provision of the Subcontract including a direction for the rectification of a Defect;

• Failure to safely protect any person or property;

• Failure to act reasonably in the discharge of obligations relating to industrial relations;

• Any other breach which is by the Subcontract made a substantial breach.

Right to Recover

If Contractor exercises a right in Clause 15 or Clause 19 then Contractor may recover from the Subcontractor, at its election, either the actual or anticipated costs of completing the Works less the amount which would have been paid to the Subcontractor if it had completed the Works.

Contractor’s Default

If Contractor fails to pay an amount due under this Subcontract or otherwise commits a substantial breach of this Subcontract, and the Subcontractor considers that damages may not be an adequate remedy, the Subcontractor may serve a notice under this clause entitled “Notice of Contractor Default”.

If Contractor fails to show reasonable cause why the Subcontractor should not exercise a right under this clause then the Subcontractor may, by notice in writing to Contractor suspend the whole or any part of the work under the Subcontract.

Substantial breaches by Contractor include:

• failing to make a payment, in breach of Clause 8;
• failing to issue a Certificate of Practical Completion

The Notice of Contractor Default shall:-

• state that it is a notice under Clause 18 of the Subcontract Terms;

• specify the alleged substantial breach;

• require the Subcontractor to show cause in writing why Contractor should not exercise a right referred to in Clause 18;
• specify the time and date by which Contractor must show cause (which time shall not be less than 7 clear days after the notice is given to Contractor;

• specify the place at which cause must be shown.

Should any other person pay to the Subcontractor any moneys in respect of the Works then, to the extent of the payment, Contractor’s payment obligation is deemed to be discharged.

The Subcontractor shall have no claim, other than for an extension of time where so provided under the Subcontract, in connection with any delay or disruption to work under the Subcontract whether the delay or disruption arises from a breach by Contractor of an express term of this Subcontract or otherwise.

Rights upon insolvency or un-remedied default

Contractor or the Subcontractor, without prejudice to any other right it may have, may terminate this Subcontract, or in the case of Contractor may terminate the Subcontractor by notice in writing upon the date stated in the notice if the other party is insolvent or:

(a) being a person:

• has judgment entered against him or her in any court in any jurisdiction; or

• becomes the subject of a bankruptcy petition; or

• commits an act of bankruptcy; or

• is declared bankrupt; or

• has communications with creditors with a view to entering into, or enters into, any form of compromise or arrangement with his or her creditors; or

(b) being a company:

• becomes or there is reason to anticipate it may become an “externally administered body corporate” or to which a “controller of the company's property or part of its property” is or may be appointed, as those terms are defined in Section 9 of the Corporations Law, or

• has communications with creditors with a view to entering into, or enters into, any form of compromise or arrangement with its creditors; or

• an order is made or resolution passed for its winding up (except for the purpose of reconstruction or amalgamation with the consent of the other which consent may not be unreasonably withheld); or

• an order is made for the appointment of a liquidator or provisional liquidator, or

• it makes an assignment for the benefit of or enters into any arrangement or composition with its creditors or an administrator is appointed to it or it is unable to pay its debts within the meaning of the Corporations Law; or

• as a result of the operation of section 459F(1) of the Corporations Law, it is taken to have failed to comply with a statutory demand; or

• a receiver, manager or receiver and manager or controller (as defined in the Corporations Law) is appointed is respect of any of its business assets or undertaking; or

• being the Subcontractor, does not remedy a substantial breach of the Subcontract the subject of a Notice of Subcontract Default under Clause 15 within 7 days of receiving notice; or

(d) being Contractor does not remedy a substantial breach of the Subcontract the subject of a Notice of Contractor Default under Clause 18 within 14 days of receipt of that notice.

Termination without default

Contractor may by written notice to the Subcontractor determine its engagement under this Subcontract at any time. In the event of termination under this clause, the Subcontractor's entire entitlement in connection with the Works or this Subcontract shall be the Subcontract value of all work carried out in accordance with the Subcontract to the date of determination less amounts previously paid to the Subcontractor.

Deemed termination without default

If the Subcontract is frustrated or if Contractor repudiates it, the entitlements of the Subcontractor shall be those arising upon a termination by Contractor under Clause 20.

Contractor may suspend

Contractor may at any time by notice in writing suspend work under the Subcontract without entitlement of costs or amounting to a breach.

Removal of waste materials and back charges

The Subcontractor shall keep the Site and the Works and equipment and vehicles clean and tidy and shall regularly remove rubbish and surplus material from the Site or any part of it or as directed by Contractor. The Subcontractor shall comply at its cost with any direction requiring materials to be recycled or sorted.

The Subcontractor shall ensure that all waste material generated is kept to an absolute minimum. Without limiting the preceding sentence the Subcontractor shall:

(a) supply to the Site materials prepared or precut to appropriate size;

(b) minimise packing of materials;

(c) arrange for the return of packaging to the supplier;

(d) not place any packaging material in receptacles supplied by Contractor; and

(e) comply with any direction of Contractor as to waste material.

Within 5 days after the Date of Completion the Subcontractor shall remove any temporary works and constructional plant unless directed otherwise in writing by Contractor.

If the Subcontractor fails to clean the site, fails to remove waste materials in accordance with this clause or otherwise neglects to carry out its work in accordance with the Subcontract within 24 hours of a notice issued by Contractor, then Contractor may carry out the work or arrange for the work to be carried out by others. The cost of which shall become a debt payable by the Subcontractor to Contractor including an overhead charge of up to 15%.

Notices

Any notice to be given or served under or in connection with this Subcontract shall be in writing and delivered by hand or facsimile at the address of the other party detailed in the Subcontract Agreement (or other address as notified by the parties).A notice sent by facsimile transmission is taken to have been received on the next working day after the day shown on the transmission showing the facsimile number of the party to whom it is addressed.

Industrial Relations, Safety, Quality Assurance and Performance Audit

The Subcontractor acknowledges that Contractor have the right under this Subcontract to conduct quarterly performance audits and requires the full co-operation of the Subcontractor.

Working Hours

The working hours and working days are stated in Contractor work order and if not so stated shall be approved by Contractor prior to commencement of work under the Subcontract. The working hours and working days shall not be varied without prior approval from Contractor.

If the Subcontractor finds it necessary to work outside the approved working days or working hours to protect the Works or to ensure the Works are completed within the Subcontract period it must give notice to Contractor setting out the circumstances.

Defective Work

The Subcontractor shall be responsible for the rectification of any defects, shrinkage or other faults in the Works notified in writing by Contractor.

If the Subcontractor fails to comply with any instructions issued by Contractor within seven (7) days of such notice, then Contractor may arrange for others to carry out the work required and the cost suffered by Contractor shall become a debt payable by the Subcontractor to Contractor including an overhead charge of up to 15%.

If material, Subcontract Work or other work under the Subcontract is not in accordance with the Subcontract, Contractor may at its sole option and discretion direct the Subcontractor to do anyone or more of the following:

• test or remove the material (or any part thereof) from the Site;

• demolish the Subcontract Work (or any part thereof) or other work under the Subcontract;

• redesign, reconstruct, replace or correct the material, Subcontract Work or other work under the Subcontract; or

• not deliver the material or Subcontract Work (or any part thereof) to the Site or undertake work under the Subcontract on the Site.

Contractor may direct the times within which the Subcontractor must commence and complete the removal, demolition, redesign, reconstruction, replacement or correction or testing.

Contractor may have that work subject to a Direction under Clause 27 carried out by itself or another person if the Subcontractor fails to comply with that Direction within the time or times specified.

Any cost incurred by Contractor shall be a debt due and owing from the Subcontractor to Contractor.

Contractor may elect to accept the Material, Subcontract Work (or any part thereof) or other work under the Subcontract not in accordance with the Subcontract. The resulting increase or decrease in the value to Contractor of the Subcontract Work and any loss

suffered by Contractor shall be valued under Clause 12 and the Subcontract Sum shall be adjusted accordingly.

Information and Confidentiality

The information and copies of information provided to Contractor by the Subcontractor forming part of this agreement are true copies of originals which the representative of the Subcontractor knows to be valid, current, true and correct (as the case may be).

The Subcontractor knowledge’s that, the work request, the information accompanying and contained in each work request, the particulars of parties on each work request, these terms and conditions, the format of this agreement and the invoicing and business systems of Contractor are the commercial and confidential information of Contractor. After the completion of each work request, the Subcontractor warrants that it shall not use any confidential information for any purpose and shall not disclose any confidential information to any other person.

The Subcontractor warrants that it shall not contact, offer or induce for the purposes of providing supplies, services or work to the parties named (or any representative of the parties named) on any work request for a period of 12 months after the date of each respective work request.

The Subcontractor warrants that it shall not contact, offer or induce for the purposes of providing supplies, services or work to Contractor’s clients whether named on the work request of otherwise for a period of 12 months after the date of each respective work request.

The Subcontractor warrants that they, nor its directors, officers, agents or employees shall not approach, contract, enter into any contract or arrangement or do anything to in any way circumvent the distribution arrangement between the Contractor’s suppliers and the Contractor. The Subcontractor agrees to pay to the Contractor all profits directly or indirectly gained by the Subcontractor by virtue of any direct supply from Contractor’s supplier to the Subcontractor or to the Subcontractor’s directors, agents or employees.

Definitions

‘Claim’, or ‘claim’ means any request, demand or entitlement in relation to this Subcontract or the Works for payment (whether under this Subcontract or otherwise), failure to pay, extension of time, damages (whether under this Subcontract or otherwise, including without limitation in tort, for breach of quasi contract, misrepresentation, under any statute except a statute which cannot be barred by agreement), payment or damages in quantum meruit, unjust enrichment or restitution, or (without limitation) pursuant to any other principle of law or equity.

‘Day’ means calendar day.

‘Defect’ includes any part of the Works not in accordance with this Subcontract.

‘Defects Liability Period’ means the period commencing on Completion and expiring 12 months (or such other time as stated in the Schedule) after Practical Completion under the Head Contract.

‘Head Contract’ means the contract between the Customer and the Contractor.

‘Completion under the Head Contract’ shall mean the date advised in writing by Contractor as the Date of Practical Completion under the Head Contract.

“Contractor’s Commission Rate” means the rate stated in Schedule 2

‘Customer means the person so described or similarly described in the Head Contract.

‘Completion” means the state of the Works when they are complete and the Subcontractor has complied with its obligations under the Subcontract except for minor defects which cannot be promptly rectified and which shall not, by either their existence or rectification, inconvenience the use of the Works by any person and any other requirements set out in the Head Contract have been satisfied by the Subcontractor where they relate to the Works.

‘Works or work’ means the whole of the work to be executed in accordance with the Subcontract.

SPECIAL CONDITIONS OF SUBCONTRACT

SC 1 SUBCONTRACTOR PROMISES

The Subcontractor warrants to the Contractor that:

(a) all the information disclosed in this Subcontract is true, accurate and complete. In particular the Subcontractor’s activities, equipment, and chemicals;

(b) all equipment brought to the Site is safe and fit for purpose;

(c) it shall advise the Customer of all material and equipment brought onto the Site;

(d) it shall store, place, use, material and equipment safely as intended;

(e) it shall disclose to the Contractor all materials, items and things received from or delivered to the Customer;

(f) it shall provide a copy of every invoice to the Customer and the Contractor;

(g) the Subcontractor shall not negotiate any quotation sum with the Customer without first gaining approval from the Contractor;

(h) the Subcontractor shall disclose to the Contractor any payments (other that the quotation sum) made by the Customer to it arising out of connected with the works request including variations, delays and any other gratuity;

(i) the Subcontractor shall not claim any additional charges for the works request works or any other works without first disclosing the variation to the Contractor and gaining approval for the variation from the Contractor;

(j) The Subcontractor shall advise immediately the Contractor in the event that:

i. the works the subject of the works request are incomplete, damaged, defective or of poor quality;

ii. people or other property are damaged; or

iii. a Customer’s complaint.

(k) The Subcontractor shall at all times support and safeguard the Contractor's commercial interests in any dealings with the Customer or third parties;

i. The Contractor shall not provide personal or other details that are unrelated to the Contractor, to the Customer unless directed or allowed to do so by the Contractor;

ii. The Contractor shall, at all times, operate as a registered Australian Business and provide current details including ABN, TFN and if registered for GST to the Contractor.

SC 2 CUSTOMER RECEIPTS

(a) The Subcontractor shall confirm and ensure PRIOR to departure from the Site that:

1. the Customer has paid to the Contractor or to the Subcontractor the quotation amount and any other sum arising out of or connected with the work request;
2. it has informed the Contractor of such payment and the type of payment (cash or otherwise) (or non payment as the case may be);

• it does not accept and returns to the Customer any cheques from the Customer other than those made payable to the Contractor and dated the same date of issue;

1. all credit card payments by the Customer are signed by the Customer on a credit card Payment authorisation form;
2. all credit card payments are to be processed through the Contractor’s credit card payment facility

• The Subcontractor shall be responsible for all payments to the Contractor if the Subcontractor does not comply with the clause SC 2.

(c) The Subcontractor shall AFTER departure from the Site and within forty-eight (48) hours from receipt from the Customer:

1. ensure that all cash and cheque payments received from the Customer are deposited into the Contractor’s bank account;
2. a receipt from the bank of all deposits is provided to the Contractor;

SC 3 CONDUCT

(a) The Subcontractor shall:

1. where provided, wear the Contractor’s apparel, whilst travelling to and from Site and while being present on Site;
2. where provided, present the Customer with Contractor’s business cards and merchandise;

• comply with the Contractor’s quality assurance documents;

1. be punctual and adhere to allotted time schedule;
2. advise of rescheduled work to the Customer and the Contractor;
3. present itself to the Customer as any other entity than that of the Contractor

• be offensive in the presence of the Customer or whilst on Site.

SC 4 LIABILITY

(a) The Subcontractor is liable:

1. for the works of the works request;
2. to ensure all loss or damage caused to people or property by the Subcontractor arising out of or connect with the works request;

• missing items of the Customer;

1. for the resolution of any dispute with the Customer.

SC 5 THE SUBCONTRACT COMES TO AN END

(a) Upon termination of the Subcontract, or upon expiration of the Subcontract the Subcontractor:

1. shall not approach Customers of the Contractor especially, but not limited to Customers that have been due to Contracted Work;
2. shall no longer represent the Contractor with apparel, orally or any other means;

• shall return any possessions of the Contractor, including but not limited to apparel, facilities, keys, intellectual property, and material gained from or through the Contractor within forty-eight (48) hours of the termination or expiration of the Subcontract. Any materials, equipment or information not returned shall remain property of the Contractor;

1. shall, immediately upon dispatch or receipt of such notice, take all necessary steps to bring the works under any works request to a close in a prompt professional and orderly manner.

SC 6 SUMMARY TERMINATION

(a) The Contractor may immediately terminate the Contract by written notice if in the reasonable opinion of the contractor the Subcontractor has committed any of the following:

1. any alleged criminal conduct of an employee of the Subcontractor;
2. wilful misconduct or unsafe conduct of an employee of the Subcontractor;

• fundamental or repeated breach of the Subcontract;

1. a failure to comply with any Subcontractor obligation or time frame within clause SC 1, SC 2, SC3 and SC 4;
2. deliberate destruction of Customer property.

SC 7 SUBCONTRACTOR’S BOND

(a) The Contractor is entitled to deduct from each and any payment that is or may be due and payable to the subcontractor such for the purpose of the Bond up to ten percent (10) until the amount shown in the Subcontract Sum Contractor’s Commission and Bond.

(b) The Contractor is entitled to hold a bond amount as specified in the Subcontract Sum Contractor’s Commission and Bond, which shall be returned (subject to the other terms allowing deductions under the Subcontract) the balance available within four (4) weeks after termination or expiration of the Subcontract.

 SC 8 DEDUCTIONS TO SUBCONTRACTOR’S BOND

(a) The Contractor is entitled to deduct from the subcontractor’s bond the sum or sums of any loss, damage, anticipatory damage, expense or contingent expense incurred or likely to be incurred by the Contractor as a consequence of breach of any of the terms of the Subcontract.

(b) The Contractor shall and make a reasonable calculation of any loss, damage, anticipatory damage, expense or contingent expense incurred or likely to be incurred by it and shall notify the subcontractor in writing of that estimate.

(c) The parties agree that the calculation shall be final and binding and shall not be a penalty.

SC 9 PAYMENT

Commercial Works

Customers who are commercial clients may provide purchase or works orders and pay on 30 days terms.

The Subcontractor shall give Contractor a written claim for payment each Friday of each week of the completed works the subject of the claim.

The claim is to identify the amount claimed, how the amount is calculated, deductions to which Contractor is entitled and, when additions are claimed, the legal and factual basis of the claim. Any claim is to identify GST separately from the base claim.

Without limiting the provisions of this clause the Subcontractor shall not include in its notification any claim which it does not have bona fide intent to pursue or for which it ought to be aware that no proper basis exists.

Payment shall be made by Contractor in accordance with 7 days after the later of receipt of the written claim on any Friday after the works have been carried out and, if requested, after all documentation or undertakings in support of the claim that may be reasonably requested by the Contractor is provided to the Contractor, whichever is the later.

If the Subcontractor breaches this Subcontract, Contractor is not obliged to make any payment to the Subcontractor while the breach continues. If the Subcontractor provides the documentation or undertakings and any moneys are shown as unpaid in the any documentation or undertakings in support of the claim that may be reasonably requested by the Contractor, or Contractor discovers that monies due have not been paid, then Contractor may withhold payment to the Subcontractor of the moneys so shown or discovered.

Payment is not evidence of the value of work or an admission of liability or that the work is satisfactory but is a payment on account only.

Residential Works

Customers who are residential clients may pay by direct deposit, or credit cards (and if there is no other method of payment then by cash or cheque) and must pay on completion of the works.

All payments The Subcontractor shall give the Contractor a written claim for payment each Friday of each week of the completed works the subject. The claim must reconcile amounts received from the Customer for each of the works.

The Subcontractor shall deposit the requisite amounts owed to the Contractor of all cash and cheques left with the Subcontractor within 48 hours of receipt into the account of the Contractor.

The claim is to identify the amount claimed, how the amount is calculated, deductions to which Contractor is entitled and, when additions are claimed, the legal and factual basis of the claim and any monies paid or received in respect of the works.

Any claim is to identify GST separately from the base claim.

Payment of any sum owing to the Subcontractor shall be made by Contractor in accordance with Schedule 1 or
7 days after the later of receipt of the written claim on any Friday and the Statutory Declaration is provided, whichever is the later.

The Subcontractor shall also pay to the Contractor any sum due and owing to it in accordance with the terms of the Subcontract.

If the Subcontractor breaches this Subcontract, the Contractor is not obliged to make any payment to the Subcontractor while the breach continues. If the Subcontractor provides any documentation or undertakings in support of any claim for payment that may be reasonably requested by the Contractor which is false and by virtue of that false documentation which has been provided pays the Subcontractor any moneys such payments to the Subcontractor, this will be deemed an overpayment and is to be set off against all future claims or otherwise recoverable.