The Subcontract Terms comprise:
The Subcontract between the parties shall constitute the Subcontract Terms and the Contractor works request.
The Subcontractor shall do all things necessary and ancillary for each work request,
in order to carry out and complete the Works, as required and set out in the work request.
In consideration of the due and proper performance of the Subcontract by the Subcontractor , Contractor agrees to pay the Subcontractor the (GST-exclusive) Subcontract Sum the lump sum or rates as may constitute the Subcontract Sum as determined by the Subcontract.
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.
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:
The Subcontract Terms shall apply to all future work requests as agreed between the parties.
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.
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:
(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.
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.
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.
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.
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%.
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.
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.
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.
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:
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.
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.
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.
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.
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:-
The Notice of Subcontractor Default shall:-
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.
For the purposes of Clause 15, substantial breaches by the Subcontractor include but are not limited to:
(a) Suspension of work;
(c) Failure to use the materials or standards of workmanship required by the Subcontract;
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.
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:
The Notice of Contractor Default shall:-
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.
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:
(b) being a company:
(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.
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.
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 at any time by notice in writing suspend work under the Subcontract without entitlement of costs or amounting to a breach.
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%.
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.
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.
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.
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:
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.
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.
‘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.
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.
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.