1: Contractor to perform Work
- The Contractor must perform the Works in accordance with:
- The requirements of this agreement;
- the Principal’s directions;
- all applicable laws, approvals, licences, consents, standards and codes; and
- good industry practices.
- If there is any inconsistency in the above, the earlier listed will prevail to the extent of the inconsistency.
- The Contractor must, in performing the Works, use:
- proper and tradesmanlike workmanship; and
- materials which are suitable, new, free from defects and fit for their intended purpose.
- The Contractor warrants that:
- It will perform the Works with the professional skill, care and diligence expected of a qualified, professional contractor experienced in performing similar works;
- It is registered and licensed to perform the Works as required by law;
- The Principal may direct the Contractor in writing to add to, omit from or vary the Works. The parties must agree a reasonable change to the Contract Price (or the basis for calculating such a change) for the addition, omission or variation.
- The Contractor must promptly provide any information requested by the Principal regarding the performance of the Works.
2: Time for performing Works
- The Contractor must:
- commence the Works promptly after the Commencement Date;
- perform the Works with due expedition and without delay; and
- use reasonable endeavours to complete the Works by the Completion Date.
- The Contractor must only perform the Works on the days and during the working hours directed by the Principal or, if no such direction is given, permitted by law.
- The Contractor must promptly advise the Principal if the Contactor becomes aware of any circumstances or event which will or are likely to delay the Works.
- The Contractor must notify the Principal in writing when the Contractor believes the Works are complete in accordance with this agreement.
- The Principal must, promptly after receipt of notice under clause 2(d), inspect the Works and give the Contractor either:
- a notice certifying that the Works are Practically Complete and detailing any outstanding Works or defects in the Works; or
- if the Works are not complete, a list of outstanding Works and defects in the Works.
- If the Works are not complete, the Contractor must, promptly complete any outstanding Works and rectify any defects in the Works.
- The Contractor will receive non-exclusive access to the Site as reasonably required for the purposes of performing the Works.
- The Contractor must, during the performance of the Works, clean up and place all rubbish in the bins provided on a daily basis. Upon completion of the Works, the Contractor must leave the Site in a clean and tidy condition.
- The Contractor must not delay, interfere with or disrupt other works and activities being carried out on the Site, except to the extent necessary to perform the Works.
- The Contractor must:
- comply with all laws (including the Work Health and Safety Act 2011 (NSW) and associated regulations), Codes of Practice, Compliance Codes and directions from public authorities relating to workplace health and safety, dangerous goods or electrical safety (‘Health, Safety and Environmental Requirements’); and
- perform the duties and functions of an employer and person in control of the Site under such Health, Safety and Environmental Requirements.
- The Contractor must:
- assist the Principal to comply with any Health, Safety and Environmental Requirements applicable to the Principal in respect of the Site or the Works; and
- comply with any directions given by the Principal which are necessary for the Principal to comply with any Health, Safety and Environmental Requirements in respect of the Site or the Works.
- The Principal may at any time before the Works are complete direct the Contractor to rectify any defect, non-compliance or omission in the Works at no cost to the Principal.
- The Contractor must, upon receipt of a direction under clause 4(a), rectify the defect, non-compliance or omission within a reasonable time. The Contractor must carry out any rectification work at times and in a manner which causes as little inconvenience to the owners and users of the Site as is reasonably possible.
- If the Contractor does not comply with clause, the Principal may, after giving the Contractor 7 calendar days’ notice, have the rectification work carried out and the costs and expenses incurred by the Principal in doing so will be a debt due and payable from the Contractor to the Principal.
- The Principal’s rights under this clause 4 are additional to its other rights under this agreement and at law.
- On the 23rd day of each calendar month, the Contractor must submit a payment claim to the Principal for the Contract Price for Works carried out during that calendar month and any other amount payable to the Contractor under this agreement.
- Each payment claim must:
- be delivered by email (firstname.lastname@example.org) and a copy sent in the post to Coastal Construction and Building Pty Limited, Attention: Accounts Payable, PO Box 269 Gosford NSW 2250;
- set out the total amount claimed by the Contractor and a detailed itemised breakdown of that amount; and
- be accompanied by a statutory declaration:
- signed by a person who is in a position to know the facts attested to and is authorised to bind the Contractor; and
- completed to a date not earlier than the date of the relevant payment claim.
- The Principal must, within 10 business days after receipt of a payment claim, issue to the Contractor a payment schedule. The payment schedule must set out:
- the payment claim to which it relates;
- The Principal’s determination of the amount claimed which the Contractor is entitled to be paid in accordance with this agreement; and
- if the amount determined is less than the amount claimed, the reasons for that difference (including the reasons for withholding any amount).
- The Contractor must, within 3 business days after receipt of a payment schedule, give the Principal the tax invoice required by clause 6(f).
- Subject to clause 5(h), and the Contractor complying with clause 5(b), the Principal must, pay to the Contractor, the amount set out as payable in the payment schedule by the last day of the following month from the original payment schedule date. All payments are made on account only. The Principal shall not be obliged to make a payment under this agreement unless the Contractor has complied with clause 5(b).
- The Contractor must promptly provide any information and assistance reasonably requested by the Principal for the purposes of assessing a payment claim under clause 5(c).
- The Contractor must ensure that, upon payment by the Principal for work, materials, equipment or other goods, the Principal receives good title in the work, materials, equipment or other goods, free and clear from all liens, claims and encumbrances.
- The Principal may deduct or set-off from any amount due and payable from the Principal to the Contractor under or in connection with this agreement, any amount due and payable from the Contractor to the Principal under or in connection with this agreement.
- Terms used in this clause 6 have the same meaning as those defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) unless provided otherwise.
- Any reference in this agreement to fee, price, value, sales, revenue or similar amount (‘Revenue’) shall be a reference to that Revenue exclusive of GST, unless and to the extent that the Revenue is expressly agreed to be GST inclusive.
- The parties shall each have an ABN and be registered for GST.
- If any supply made under or in connection with this agreement is subject to GST, the supplier may increase the consideration otherwise provided for by the amount of that GST and recover such additional amount from the recipient. This clause 6(d) does not apply to the extent that the consideration is expressly agreed to be GST inclusive.
- If the recipient is required to reimburse the supplier for any costs, the amount must be reduced to the extent that the supplier is entitled to claim an input tax credit in respect of those costs. A party will be assumed to have an entitlement to claim a full input tax credit unless it demonstrates otherwise prior to the date on which the consideration must be provided.
- No payment of any amount in respect of GST is required until the supplier has provided a tax invoice or adjustment note, as the case may be, to the recipient. The supplier shall provide a tax invoice or adjustment note to the recipient as required by A New Tax System (Goods and Services Tax) Act 1999 (Cth).
7: Risk of loss or damage
- The Contractor is responsible for the care of the Works (including temporary works, construction equipment, unfixed plant or equipment and items entrusted to the Contractor by the Principal) from the commencement of the Works until the Works are completed and handed over to the Principal.
- The Contractor must provide all things and take all measures necessary to protect people, property and the environment and avoid nuisance or unnecessary interference to people and vehicles on or around the Site.
- The Contractor must indemnify the Principal against any claim, action, damage, loss, cost or expense (‘Loss’) in respect of:
- personal injury to, or the death of, any person; or
- loss of, damage to or loss of use of any property, including property of the Principal, arising out of or in connection with the performance of the Works.
- The Contractor’s liability under clause 7(c) is reduced to the extent that the Principal’s breach of this agreement or negligence contributed to the Loss.
- The Contractor must effect and maintain, or cause to be effected and maintained, insurance policies for the period and level of cover specified on the Contract Details, or as otherwise approved in writing by the Principal.
- Each insurance policy required by clause 9(a) must be effected with a reputable insurer with a Standard and Poors rating of not less than A, on terms which a prudent and experienced contractor performing work similar to the Works could reasonably be expected to obtain..
- The Contractor must, before commencing the Works and within 2 business days after a request by the Principal, give the Principal certified copies of certificates of currency for the insurances required by this clause 8.
- If the Contractor fails to comply with any these insurance obligations, the Principal may at its discretion purchase appropriate insurance on behalf of the Contractor or Subcontractor which comply and at the Contractor’s or Subcontractor’s sole expense.
- Subject to clause 9(b), either party’s aggregate liability to the other party arising out of or in connection with this agreement (whether under contract, in tort, under statute or otherwise at law or in equity) is limited to three times the contract sum..
- The limitation in clause 9(a) does not apply to the Contractor’s liability in respect of:
- personal injury to, or the death of, any person;
- loss of, damage to or loss of use of any property, including property of the Principal;
- any insurance proceeds which are recovered by the Contractor in respect of the liability or would have been so recovered if the Contractor had complied with this agreement and the insurance policy and used its best endeavours to recover the proceeds;
- fraud, dishonesty, or wilful misconduct of the Contractor, its employees, agents or contractors.
- Nothing in this clause 9 limits the Contractor’s obligation to perform the Works and rectify any errors or omissions in the Works.
- The Principal may in its absolute discretion and for any reason whatsoever terminate this agreement at any time by giving the Contractor 5 business days’ written notice.
- If this agreement is terminated under clause 10(a), the Principal must (without prejudice to any other rights or remedies the Principal may have) pay to the Contractor any amount payable under this agreement for Works performed up to the date of termination, less any amount the Principal is entitled to set-off. Payment of this amount will be the Contractor’s sole entitlement in respect of the termination.
- Subject to clause 11(b), the Contractor must keep the Principal’s confidential information confidential and must not disclose any such confidential information to any third party.
- The Contractor may disclose the Principal’s confidential information:
- as required by law;
- with the prior written consent of the Principal;
- which is in the public domain, other than due to a breach of confidence; or
- to third parties for the purposes of carrying out the Works, subject to an equivalent duty of confidence.
- The parties agree that this clause 11 survives the termination or expiry of this agreement.
- The Principal may at any time assign, novate or otherwise transfer all or any part of its rights or obligations under this agreement without the consent of the Contractor.
- The Contractor must not assign, novate or otherwise transfer its rights or obligations under this agreement without the Principal’s prior written consent.
- The terms in this agreement apply retrospectively to any Works performed before the date of this agreement.
- This agreement contains the entire agreement between the parties. Any other terms or conditions in any tender or quotation by the Contractor are excluded.
- A variation to any term of this agreement must be in writing and signed by the parties.
- No party may rely on the words or conduct of the other party as a waiver of any right unless the waiver is in writing and signed by the parting granting it.
- This agreement is governed by the law in force in the jurisdiction nominated in the Contract Details.
- Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the jurisdiction nominated in the Contract Details and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.
- Where this agreement is signed on behalf of a party, the signatory represents that he or she is authorised to do so.