TERMS & CONDITIONS

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1.        Works

 

1.1      The Subcontractor shall:

(a)       carry out the Works in accordance with the Purchase Order and any provided Scope of Works and the Plans and Specifications;

(b)       bring the Works to Completion by the Date for Completion of Works; and

(c)       otherwise comply with and be bound by the Agreement.

 

1.2      In accepting a Purchase Order and proceeding with works:

The Subcontractor warrants and represents to Handdii that:

(a)       it has examined and has actual knowledge of the Site and all information made available to, or provided to, or obtained by, the Subcontractor, including and/or in relation to:

(i)        the Scope of Works and Plans and Specifications;

(ii)       the physical conditions or obstructions upon and below the surface of the Site including, without limitation, support for the Works, sub- subsurface stability and variation and other latent site conditions that may have an effect on the Works;

(iii)      the local and environmental conditions including, without limitation, climatic conditions;

(iv)      how the Works are to be coordinated with other works at the Site:

(v)       any other conditions or characteristics of the Site affecting, or which may affect the Subcontractor’s performance; and

(vi)      the risks, contingencies and other circumstances that may impact the Works;

(b)       it has satisfied itself as to the correctness and sufficiency of the Agreement for complying with all its obligations under this Agreement and at Law necessary for the due and proper performance of the Works; and

(c)       it has made proper allowance for all award payments, site allowances, registered or approved industrial or other agreements that regulate terms and conditions of employment and insurance requirements payable by the Subcontractor to or in respect of its employees, agents or subcontractors for all labour, material and other resources and things necessary to enable it to comply with its obligations under the Agreement;

(d)       all goods, materials and equipment supplied and used by the Subcontractor for the Works are suitable, new and free of defects;

(e)       it shall perform the Works in a proper and workmanlike manner to the reasonable satisfaction of Handdii;

(f)        all necessary consents, permits or other Approvals have been, or will be, obtained by the Subcontractor in order for the Subcontractor to carry out and complete the Works;

(g)       it shall at all times be suitably licensed, qualified and experienced, and will exercise due skill, care and diligence in the carrying out and Completion of the Works;

(h)       it shall provide sufficient and adequate resources to bring the Works to Completion expeditiously and without delay;

(i)        it shall, upon request, provide to Handdii all documents and information necessary and incidental to the carrying out, Completion, use and occupation (if applicable) of the Works, including, without limitation, all as installed / built drawings and service manuals, warranties and guarantees, testing and calibration records, shop drawings, samples, and certificates of compliance;

(j)        it shall comply with and ensure that the Works comply with all Legislative Requirements

(k)       it shall control, carry out and bring the Works to Completion in a proper and workmanlike manner so that the Works, when completed, will be free of defects, comply with all the requirements of the Agreement and Legislative Requirements, and shall be fit for their intended purpose.

(l)        it shall give Handdii, and any other party nominated by Handdii, access to the Works at all times required by Handdii;

(m)      it shall carry out the Works pursuant to the Agreement as and when directed by Handdii and/or within the working hours directed or program provided by Handdii from time to time;

 

1.3      Minor items and works not expressly mentioned in the Agreement but which are necessary for the due and proper performance and completion of the Works to achieve a standard of work which is fit for purpose and within a level of finish consistent with the Agreement are deemed to be included as a part of the Works. The Subcontractor warrants that all such items and works are provided for in the Subcontract Sum and will be supplied and executed by the Subcontractor at without additional charge or cost to Handdii.

 

1.4      The Subcontractor acknowledges that Handdii has entered into the Head Contract.

 

1.5      The Subcontractor acknowledges and agrees that it has been given a reasonable opportunity to inspect and familiarize itself with the terms of the Head Contract (with sensitive financial information redacted) prior to entering into the Agreement, and that in addition to its other obligations under the Agreement, the Subcontractor:

(a)       must observe, perform and comply with all provisions of the Head Contract on the part of Handdii to be observed, performed and complied with, insofar as they relate to and apply to the Works and the Agreement, and are not inconsistent with the express provisions of the Agreement, as if those obligations were expressly set out in the Agreement as the Subcontractor’s obligations;

(b)       must do all things reasonably requested by Handdii to ensure that Handdii complies with (and is able to comply with) its obligations under the Head Contract; and

(c)       unconditionally and irrevocably indemnifies Handdii from and against any Claim that Handdii suffers or incurs in relation to the Subcontractor failing to satisfy its obligations under the Agreement, including any Loss that Handdii suffers as a result of claims arising out of or under the Head Contract.

 

2.        Subcontract Sum

 

2.1      In consideration of the Subcontractor performing its obligations under the Agreement, Handdii agrees to pay the Subcontractor the Subcontract Sum, as adjusted only pursuant to the Purchase Order.

 

2.2      The Subcontract Sum is a fixed lump sum price and is not subject to adjustment except as expressly provided in the Purchase Order.

 

2.3      Without limiting Clause 2.1, there shall be no adjustment to the Subcontract Sum for any:

(a)       rise or fall in labour or material costs or other fees or charges (including those due to new or changed statutory costs, fees, charges, sales taxes or other taxes and or overheads introduced after entering into the Agreement);

(b)       time lost from or events caused by inclement weather or industrial action;

(c)       error in measurements or quantities used by the Subcontractor in compiling its tender, quotation or pricing offer for the Works;

(d)       item or expenditure necessary for the Completion of the Works even though that item may not be specifically mentioned in the Purchase Order; or

(e)       Changes in Legislative Requirements or requirements of Authorities.

 

2.4      Notwithstanding anything else in this Agreement, Handdii shall in no event be liable to the Subcontractor for any Loss arising out of or associated with any delay or disruption to the Works, including, without limitation, any claims for loss of productivity or for consequential loss (whether direct or indirect), or for loss of profit, loss of contract or loss of opportunity.

 

3.        Legislative and Other Requirements

 

3.1      The Subcontractor must:

(a)       inform itself and comply with, and ensure all persons engaged by the Subcontractor in the Works inform themselves and comply with, all Legislative Requirements (and all relevant policies, practices, procedures and measures) applicable to the Works from time to time.

(b)       institute and maintain good safety, environmental and waste management procedures in accordance with all OH&S Legislative Requirements and Environmental Legislative Requirements;

(c)       comply with all general Site safety procedures and required standards of general Site safety as may be required or otherwise advised or required from time to time by Handdii.

 

3.2      The Subcontractor must immediately notify Handdii of any accident, ‘near miss’ or injury that occurs on Site during the carrying out of the Works.

 

3.3      The Subcontractor is liable for and shall keep Handdii indemnified against all Losses and Claims whatsoever arising out of any breach of this clause 3.

 

4.        Site Instructions, Meetings and Coordination

 

4.1      Handdii may issue, and the Subcontractor shall comply with, instructions, directions, notices or orders to the Subcontractor in respect of any work or thing under the Agreement including, but not limited to the programming, execution, quality, character or extent of the Works, and the Subcontractor shall comply with such instructions, directions, notices or orders.

 

4.2      The Subcontractor shall ensure there is a Subcontractor’s representative for the purpose of this Agreement at all times:

(a)       whose contact details (email and mobile) shall be made known to Handdii;

(b)       who must be fully informed about and authorised to deal with Handdii on matters pertinent to the Works generally as required by Handdii; and

(c)       who attends and participates at all meetings as requested by Handdii (including without limitation coordination meetings) and supply all necessary time and resources to coordinate the Works with Handdii and all other subcontractors.

 

4.3      The Subcontractor is responsible to ensure the Works are coordinated with all other contractors and parties on Site and shall not be entitled to recover any additional payment or to make any Claim otherwise resulting from or in connection with failure of co-ordination on site.

 

5.        Awards, Working Hours, and Delays

 

5.1      The Subcontractor shall not carry out any part of the Works outside normal working hours without the prior written consent of Handdii or unless so directed by Handdii in writing where Handdii considers it necessary in order to maintain Handdii’s Program. Any associated overtime costs shall be borne by the Subcontractor, except where Handdii expressly agrees to pay such costs.

 

5.2      The Subcontractor must avoid any conduct which might result in industrial unrest or disputation or otherwise disrupt the progress of works under the Head Contract or any other activity of Handdii or Handdii’s other subcontractors at the Site.

 

5.3      The Subcontractor shall comply with and shall ensure any of its subcontractors engaged in the Works comply with, all Workplace Legislative Requirements.

 

6.        Variations

 

6.1      Handdii may direct the Subcontractor to vary the Works by issuing a direction expressly stated to be a “Variation Direction”. The Subcontractor shall comply with all such Variation Directions.

 

6.2      The Subcontractor must not vary the Works in any way, other than as directed in writing by Handdii pursuant to clause 6.1.

 

6.3      The Subcontractor must within 3 Business Days of receiving a Variation Direction give Handdii a notice in writing which identifies:

(a)       the date Handdii’s direction was given;

(b)       the substance of the direction;

(c)       the approximate cost of, and breakdown of the costs, of the variation; and

(d)       whether a Claim will be made for an extension of time because of the variation and, if so, an estimate of the period.

Handdii may then request the Subcontractor to provide a quotation for the Variation Direction supported by measurements and other evidence of costs.

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6.4      The price of a variation resulting from a Variation Direction is that amount:

(a)       agreed between Handdii and the Subcontractor; or

(b)       failing agreement, then an amount reasonably determined by Handdii; and the Subcontract Sum shall be adjusted accordingly.

 

6.5      If the Subcontractor considers that any direction given by Handdii, other than a direction that expressly states that it is “Variation Direction”, is a direction to vary the Works, then prior to carrying out any work to which the direction relates, the Subcontractor must give to Handdii a notice in writing within 3 Business Days of issue of the direction stating that it considers that the direction is a direction to vary the Works and identifying all of the matters under clause 6.3.

 

6.6      Upon receiving a notice from the Subcontractor under clause 6.5, Handdii may determine to direct the Subcontractor to carry out a variation by issuing to the Subcontractor a “Variation Direction” under clause 6.1.

 

6.7      If the Subcontractor fails to give written notice strictly in accordance with clause 6.5 and/or Handdii does not direct a variation by issuing a Variation Direction under clause 6.6, the Subcontractor is not entitled to:

(a)       later assert that the direction amounted to a direction to vary the Works;

(b)       any compensation (including any losses, expenses, or damages) on the basis that the direction amounted to a direction to vary the Works; or

(c)       make a Claim otherwise on the basis that the direction amounted to a direction to vary the Works,

(d)       and the Subcontractor will otherwise comply with the direction given by Handdii regardless of whether the direction to vary the Works is disputed.

 

7.        Site

 

7.1      Handdii makes no representation and gives no warranty to the Subcontractor in respect of the conditions of the Site or any structures or things in, above or adjacent to, or under the surface, of the Site.

 

7.2      Handdii shall give the Subcontractor access to the Site or sufficient of the Site to enable the Subcontractor to inspect the Site and to commence the Works and from time to time give the Subcontractor access to such further parts of the Site as may be necessary to enable the Subcontractor to execute the Works in accordance with the requirements of the Agreement.

 

7.3      The Subcontractor accepts the risk of all Latent Conditions, including all time and cost implications and is not entitled to any Claim (including without limitation, an extension of time to the Date for Completion, costs including delay, disruption or prolongation costs) arising from, relating to or in connection with any Latent Condition, unless otherwise expressly stated in the Purchase Order.

 

7.4      Upon becoming aware of a Latent Condition, the Subcontractor must immediately and where possible before the Latent Condition is disturbed, and in any event, within 3 days of encountering the Latent Condition, give written notice to Handdii of:

(a)       the Latent Condition encountered and in what respects in which is differs materially from the physical conditions which should have reasonably been anticipated by the contractor in accordance with clause 7.3;

(b)       the additional work and additional resources which the Subcontractor estimates to be necessary to deal with the Latent Condition;

(c)       the time the Subcontractor anticipates will be required to deal with the Latent Condition and the expected delay in achieving Completion;

(d)       the Subcontractor’s estimate of the cost of the measures necessary to deal with the Latent Condition; and

(e)       other details reasonably required by Handdii.

 

7.5      The Subcontractor must co-operate with all workers and other contractors on the Site and comply with all directions given by Handdii under the Agreement regarding such co-operation.

 

8.        Care of Works, Insurance, and Indemnity

 

8.1      Until the date the Works are brought to Completion:

(a)       risk in the Works remains with the Subcontractor, and the Subcontractor shall be liable for any loss, damage to, or destruction of the Works from any cause (including theft and vandalism) whatsoever, except to the extent caused by a negligent act, omission or default of Handdii or any of Handdii’s other subcontractors, and the Subcontractor must make good any such loss, damage or destruction at its own cost;

(b)       the Subcontractor’s obligations regarding caring for the Works extend to taking all necessary steps, including the provision of temporary covers, to prevent loss or damage to adjacent or underlying works and property. To the extent any such loss or damage occurs and is caused by failure of the Subcontractor to comply with such obligations, or the act or omission of the Subcontractor’s employees, agents or contractors otherwise, Handdii may either:

(i)        require the Subcontractor to make good an such loss or damage at no cost to Handdii; or

(ii)       make good such loss or damage itself, and Handdii’s costs in doing so shall be a debt due and payable on demand by the Subcontractor to Handdii.

 

8.2      Unless otherwise directed by Handdii, the Subcontractor shall at its own cost, prior to commencing the Works, effect and maintain until expiry of the Defects Liability the following insurance policies on terms acceptable to Handdii:

(a)       an insurance policy for Loss or damage in relation to the Works, including all Plant and Equipment, for an amount not less than the total of the Subcontract Sum plus 10%;

(b)       public liability insurance for an amount not less than $10M, and

(c)       workers compensation or Workcover insurance or personal accident and disability insurance for cover equivalent to that provided to employees under workers compensation.

 

8.3      The Subcontractor must promptly on request by Handdii substantiate the existence and currency of all insurances required of the Subcontractor under the Agreement.

 

8.4      The Subcontractor shall be liable for any excess or deductible payable under any insurance policies effected pursuant to the Agreement.

 

8.5      If the Works are lost, damaged or destroyed, Handdii may elect to require the Subcontractor to rebuild and/or reinstate the Works or parts thereof that are lost, damaged or destroyed at no cost to Handdii from the proceeds of Subcontractor’s insurances.

 

9.        Suspension

 

9.1      Handdii may, subject to complying with applicable Legislative Requirements, suspend the whole or any part of the Works by giving written notice to the Subcontractor. The Subcontractor must not otherwise suspend the Works unless permitted to do so under any Legislative Requirements.

 

9.2      The Subcontractor will not be entitled to any payment in relation to a lawful suspension of the Works except:

(a)       to the extent of an entitlement under an applicable Law; or

(b)       where the suspension is consequent upon a suspension directed under the terms of the Head Contract, in which event the Subcontractor will be entitled to extra costs (excluding profit and Site overheads) reasonably incurred by reason of the suspension to be determined by agreement, or in the absence of agreement, by Handdii, provided that the amount so determined does not exceed the amount allowed under the terms of the Head Contract in respect of the Works.

 

10.     Notices

 

10.1    A notice under this Agreement shall be deemed to have been given and received:

(a)       if addressed or delivered to the relevant address in the Agreement or last communicated in writing to the person giving the notice; and

(b)       on the earliest date of:

(i)        actual receipt;

(ii)       confirmation of correct transmission of fax or email; or

(iii)      3 days after posting.

 

10.2    Handdii and the Subcontractor shall keep each other notified of address changes.

 

11.     Payment

 

11.1    On completion of the Works Handdii will generate a RCTI on behalf of the Subcontractor for the Subcontract Sum stated in the Purchase Order.

 

11.2    Handdii will issue payment to the Subcontractor for the Subcontract Sum within 30days of the RCTI creation so long as:

a)        A customer satisfaction statement has been signed

b)        Payment has been received by the insurance company or client related to the Head Contract

c)        Works have been carried out to the satisfaction of Handdii

d)        All WHS documents, Compliance certificates and Warranty documents have been provided

 

11.3    The Subcontractor agrees, if requested by Handdii, to provide original receipts from its suppliers and contractors engaged by the Subcontractor verifying that payment has been completed for goods supplied and or services rendered that relate to the Agreement. Handdii shall be entitled at its sole discretion to either of the following:

(a)       withhold an amount equal to the value of the goods and or services rendered pending verification of payment; or

(b)       make payment direct to the provider of the goods and or services rendered on behalf of the Subcontractor and deduct such amount from progress payments otherwise due to the Subcontractor.

 

11.4    The Agreement irrevocably authorises Handdii to make direct payments to the Subcontractor’s employees or contractors at any time in circumstances where Handdii in good faith determines it is in the interests of ensuring the Works progressing that it do so, and any such payment will be a debt due and payable by the Subcontractor to Handdii.

 

11.5    The Subcontractor acknowledges and agrees that it must not, without Handdii’s prior written approval, make a payment claim for the value of any unfixed or off-site goods or materials intended for but not yet incorporated into the Works, and shall not be entitled to make any Claim against Handdii arising out of or in connection with such goods or materials. Handdii’s written approval may be given if:

(a)       the Subcontractor provides security to the value of the unfixed or off-site goods or materials in a form and from a financial institution approved by Handdii; and/or

(b)       The Subcontractor provides evidence satisfactory to Handdii that the unfixed or off-site goods or materials are:

(i)        in the Subcontractor’s possession at all times (except where otherwise directed by Handdii);

(ii)       not subject to any charge, lien or any other matter which may affect Handdii’s ownership of the goods or materials;

(iii)      stored in adequate facilities separately from other goods or materials;

(iv)      fully paid for and clearly identifiable;

(v)       marked in the name of the project and Handdii or as directed by Handdii; and

(vi)      insured for their replacement value in the joint names of the Subcontractor and Handdii.

 

11.6    The Subcontractor agrees that, to the extent permitted and for the purposes of the SOPA Law, each:

(a)       date prescribed in a Purchase Order is a 'reference date' (as defined in the SOPA Law);

(b)       a payment schedule given by Handdii via a Purchase Order is a 'payment schedule' (as defined in the SOPA Law); and amount stated as then payable to the Subcontractor in a Purchase Order is the amount of the 'progress payment' (as defined in SOPA Law) calculated in accordance with the terms of the Agreement;

(c)       the Subcontractor is taken to have irrevocably chosen the SOPA Reference Party for adjudication purposes under the SOPA Law, that is to say:

(i)        in the case of New South Wales, Victoria, South Australia or the Australian Capital Territory, the 'authorized nominating Authority'

(ii)       In the case of Queensland, the 'prescribed appointer'; or

(iii)      In the case of Western Australia, the 'prescribed appointer';

(d)       Where Handdii may have paid a SOPA Law adjudicated amount to the Subcontractor, such amount shall be paid on account and subject to adjustment as between the parties pending any subsequent determination of such adjudicated amount by a court or tribunal of competent jurisdiction on review or appeal;

(e)       If Handdii becomes aware that a subcontractor of the Subcontractor is entitled to or intends to suspend work forming part of the Works Handdii receives a payment withholding request or the like under the SOPA Law, Handdii may:

(iv)      after reasonable prior notice to the Subcontractor, pay directly to the subcontractor; or

(v)       withhold from any monies otherwise due to the Subcontractor, the amount (or any part) claimed by the subcontractor to be owed to it by the Subcontractor;

(f)        Any amount paid by Handdii to a subcontractor as authorized or required by the SOPA Law shall be a debt due and payable by the Subcontractor to Handdii.

 

12.     Scaffold, Plant and Equipment

 

12.1    The Subcontractor shall provide all Plant and Equipment and provide and erect all scaffolding necessary to effectively and safely carry out and complete the Works unless otherwise stated in the Purchase Order.

 

12.2    The Subcontractor may use Handdii’s erected scaffolding only with the express permission of Handdii and on the condition that the Subcontractor shall be fully responsible for ensuring compliance with any scaffolding regulations and other Legislative Requirements for ensuring the safety of all persons using scaffolding. The Subcontractor shall indemnify Handdii against any Claim Handdii may suffer or incur as a result of or in connection with non- compliance by the Subcontractor.

 

12.3    The Subcontractor shall be responsible for the cost of making good any damage or other Loss of Handdii’s scaffolding, plant, machinery, tools and equipment caused by the Subcontractor its employees, agents or subcontractors, and such costs shall be a debt due by the Subcontractor to Handdii, which may be deducted by Handdii from any monies due to the Subcontractor.

 

12.4    The Subcontractor shall supply its own site office, crib and storage sheds to a standard acceptable to Handdii. Handdii is to supply an ablution block for the Subcontractor’s workers where legally required.

 

13.     Defect Liability

 

13.1    Each party must advise the other party of any defects in the Works (including any work or material that is not in accordance with the Agreement) as soon as practicable.

 

13.2    The Defects Liability commences on the Date of Completion or end of the period for Practical Completion of Handdii’s works under the Head Contract or if no such date or period, upon Completion of the Works.

 

13.3    Without limiting any other rights Handdii may have with respect to defects, Handdii may direct the Subcontractor to rectify, remove or replace any defective Works at the Subcontractor’s own cost.

 

13.4    The Subcontractor must within 3 Business Days of a direction from Handdii (or as agreed with Handdii) rectify at its own cost all defects directed to be rectified.

 

14.     Quality, Making Good And Testing

 

14.1    The Subcontractor acknowledges and agrees that it shall, at its own cost, store, handle, move, unpack, remove protect and/or replace any materials used by the Subcontractor pursuant to Handdii’s directions.

 

14.2    Handdii may at any time require the Subcontractor to submit samples, prototypes and mock-ups of any work or materials which the Subcontractor intends to use in the Works for Handdii’s review. Acceptance by Handdii of any samples does not constitute acceptance of the Works or that the Works have been carried out in accordance with the Agreement.

 

14.3    The Subcontractor must provide at its own cost, tests and facilitate inspections and testings required by Handdii to demonstrate compliance with the Agreement. The Subcontractor remains responsible for the quality of the Works even though Handdii may have had work tested or otherwise indicated that the work is in accordance with the Agreement or otherwise acceptable.

 

15.     Labour, Hours, Subcontracting and Assignment

 

15.1    Handdii reserves the right, and the Subcontractor shall allow Handdii, to inspect at any reasonable time, the payroll records of the Subcontractor to ensure compliance with applicable Employment and Workplace Legislative Requirements.

 

15.2    Handdii reserves the right to approve all labour employed or otherwise engaged by the Subcontractor in connection with the Works, and the right to direct removal from Site any person that Handdii believes is not performing in a diligent, competent, safe and tradesman like manner or whose presence otherwise at the Site is prejudicial to the Works.

 

16.     Set Out and Levels

 

16.1    The Subcontractor shall be responsible for all levels and dimensions as set out by its employees, agents or subcontractors from set out points, recovery marks and datum levels as established by Handdii.

 

16.2    All items of work not complying with the set out and tolerances of the Agreement shall be removed and replaced by the Subcontractor at its expense and to the satisfaction of Handdii. Any rectification costs incurred due to inaccurate taking up of levels, set-out and plumbing work by the Subcontractor which effect later trades must be paid by the Subcontractor.

 

17.     Acceptance of Base Work

 

17.1    Commencement of Works on Site shall be evidence that the Subcontractor:

(a)       accepts all Base Work as satisfactory for the Works to be carried out and completed;

(b)       requires no additional payment or EOT to deal with any unsatisfactory situation of the Base Works; and

(c)       has no Claim nor shall make a Claim asserting unsatisfactory Base Work as causation for any resultant or consequent defects or damage in the Works.

 

17.2    The Subcontractor shall not proceed to carry out its Works on Site if in the Subcontractor’s opinion the previous work is unsatisfactory and unless Handdii has issued a written instruction expressly overriding such objection and accepting responsibility for such work proceeding.

 

18.     Documents

 

18.1    The Subcontractor’s tender for the Works (whether called a tender or quotation or otherwise) shall only form part of the Agreement to the extent that it is expressly incorporated into the Agreement or confirmed expressly in writing by Handdii to the Subcontractor. In no circumstances otherwise shall any term of the Subcontractor’s tender limit or exclude any provision of the Agreement.

 

18.2    The Subcontractor is responsible for ongoing review of the documents comprising the Agreement, including the Scope of Works and Plans and Specifications and, must seek Handdii’s direction as to the interpretation in relation to any inconsistency, ambiguity or discrepancy therein.

 

18.3    The documents comprising the Agreement are to be taken as mutually explanatory of one another and figured dimensions shall prevail over scaled dimensions. The higher quality and/or quantity and/or greater scope of work shall prevail over lower quality, quantity and/or lower scope of work in the Scope of Works and Plans and Specifications. Handdii will otherwise direct the Agreement as to the interpretation to be followed.

 

18.4    The Subcontractor bears all risk (and shall not be entitled to any Claim relating to, arising out of or in connection with any ambiguity, discrepancy, inconsistency, or lack of co- ordination or integration of, between or in any documents comprising the Agreement (including the Scope of Works and Plans and Specifications) and/or which cause a problem, difficulty, additional cost, additional time, or complexity relating to:

(a)       the means, methods or techniques by which the Works are to be performed by the Subcontractor; or

(b)       the co-ordination, integration or buildability of the Works; or

(c)       the suitability of the Works with regard to their intended purpose.

 

18.5    The Subcontractor shall supply to Handdii four copies of the shop drawings, or such other number as required. Perusal, comment upon or return of shop drawings or other information submitted by the Subcontractor does not:

(a)       indicate acceptance or approval by Handdii; or

(b)       relieve the Subcontractor of any of its obligations or liabilities, including the responsibility for correctness of shop drawings or other information submitted by the Subcontractor.

 

19.     Maintenance Manuals and Guarantees

 

19.1    The Subcontractor must present draft copies of all as- built drawings, maintenance manuals, guarantees and warranties for approval of Handdii prior to finalising the same.

 

19.2    As-built drawings shall reflect the Works as actually constructed and shall be completely and legibly dimensioned to locate and identify all concealed services above and below ground.

 

19.3    All warranties and guarantees provided by the Subcontractor shall be

(a)       on terms jointly in favour of the subcontractor and any principal under the Head Contract and shall be endorsed as such; and

(b)       be for the period and in the form (if any) as specified in the Head Contract or as otherwise reasonably specified by Handdii

 

20.     Commencement, Completion and Delay

 

20.1    The Subcontractor shall commence the Works on the Commencement Date stated in the Purchase Order or as otherwise directed by Handdii and shall proceed with the Works with due diligence and without delay at all times in accordance with Handdii’s Program or as otherwise notified or modified by Handdii to the Subcontractor from time to time. Time is of the essence for the performance of the Subcontractor’s obligations under the Agreement.

 

20.2    The Subcontractor must carry out and bring the Works to Completion in accordance with the Agreement, including, without limitation the Scope of Works, Plans and Specifications and Handdii’s Program, and by the Date for Completion stated in the Purchase Order.

 

20.3    The Subcontractor must engage sufficient and suitable trades persons and labour to carry out the Works in accordance with Handdii’s Program. If in the opinion of Handdii the Subcontractor does not have sufficient labour to carry out the Works it may after giving the Subcontractor 5 days’ notice (or such lesser period deemed necessary by Handdii in the circumstances) itself engage additional resources towards the Works, and Handdii’s costs of so doing shall be a debt due and payable by the Subcontractor to Handdii.

 

20.4    The Subcontractor may be entitled to claim an extension of time to the Date for Completion of Works as reasonably determined by Handdii if:

(a)       the progress of the Works is delayed by:

(i)        a negligent act or omission or an act of default of Handdii (including its principal, agents, or consultants);

(ii)       Handdii directing a variation to the Works pursuant to clause 6.1 of the Agreement;

(iii)      Handdii suspending the Works (or part of the Works) pursuant to clause 9.1 of the Agreement, unless such suspension is made as a result of a failure by the Subcontractor to comply with its obligations under the Agreement; and

(b)       the delay adversely impacts the critical path of the Works and/or Handdii’s Program;

(c)       the delay will prevent the Subcontractor from achieving Completion by the Date for Completion; and

(d)       on condition that the Subcontractor gives written notice to Handdii of the delay as soon as practicable, and in any event, within 5 Business Days of its occurrence, setting out a sufficient description of the event, the date of the event, the nature, cause and likely extent of the delay, and the EOT sought.

 

20.5    The Subcontractor’s entitlement to Claim an EOT shall be reduced to the extent that the Subcontractor has contributed to the delay, or the Subcontractor has not demonstrated to Handdii’s satisfaction that:

(a)       the Subcontractor has taken appropriate steps to avoid or minimise the delay;

(b)       the delay impacts the critical path of the Works and/or Handdii’s Program; and

(c)       the delay will prevent the Subcontractor from achieving Completion by the Date for Completion.

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20.6   Handdii will within 20 Business Days of receiving the Subcontractor’s Claim for an EOT determine what, if any, EOT is to be granted. If Handdii does not grant the full EOT claimed, then it shall provide the Subcontractor with reasons. Handdii’s delay or failure to determine the Subcontractor’s Claim for an EOT within the time stated in this clause does not cause the Date for Completion to be set at large.

 

20.7    Notwithstanding that the Subcontractor is not entitled to or has not claimed an EOT, Handdii may at any time and for any reason in its sole discretion and for its sole benefit, without being obliged to act reasonably or fairly, grant an EOT or extend the Date for Completion.

 

20.8    The right of the Subcontractor to make a Claim for an EOT under this clause 20 is the Subcontractor’s sole remedy for any delay or disruption to the progress of the Works, and the Subcontractor is not entitled to any other Claim whether by compensation or damages or adjustment to the Subcontract Sum or otherwise by reason of any delay or disruption to the progress of the Works, including delay costs or damages or prolongation costs.

 

20.9    Handdii may, at any time, vary Handdii’s Program, which shall not cause the Date for Completion to be set at large. The Subcontractor must comply with, and not without reasonable cause depart from, Handdii’s Program as in place from time to time, and shall not be entitled to any Claim against Handdii (whether for extra costs, an EOT or otherwise) arising out of or in connection with a variation of Handdii’s Program.

 

21.     PPSA and Title to Goods

 

21.1    Ownership and property in all goods and/ or materials supplied and or provided by the Subcontractor under the Agreement shall pass to Handdii immediately upon delivery to Handdii and/or the Site.

 

21.2    To the maximum extent permitted by Law, the Subcontractor:

(a)       acknowledges and agrees that, by entering into the Agreement, the Subcontractor grants Handdii a Security Interest in any security and in any item of unfixed plant and materials for which the Subcontractor seeks any payment by Handdii;

(b)       warrants and must ensure that upon payment by Handdii, all equipment and materials supplied by the Subcontractor are free from any Security Interest and all other claims and encumbrances whatsoever which may adversely affect Handdii’s rights in and title to such equipment and materials;

(c)       waives its rights under section 157 of the PPSA to receive notice of any verification statement given to Handdii by the Registrar; and

(d)       in accordance with section 115 of the PPSA, agrees that sections 95, 120, 121(4), 125, 132(3) (d), 135, 142 and 143 of the PPSA do not apply to the enforcement of Security Interests by Handdii.

 

22.     Disputes

 

22.1    Notwithstanding the existence of a dispute, the Subcontractor shall continue to perform its obligations under the Agreement and comply with Handdii’s directions. Nothing herein shall prejudice the right of either party to seek injunctive or urgent declaratory relief in respect of any matter arising under the Agreement.

 

22.2    A party claiming that a dispute has arisen under the Agreement shall, within 7 days of the dispute arising, give written notice of dispute to the other party providing particulars of the dispute and nominating a person with authority to settle the dispute and the other party shall promptly give notice in writing to the first party of its representative with the authority to settle the dispute.

 

22.3    The authorised persons shall, within 14 days of the giving of the notice of the dispute, confer at least twice and in good faith and without prejudice to seek to resolve the dispute.

 

22.4    If the dispute is not resolved within 28 days of the notice of dispute, then either party must within a further 7 days, by giving written notice to the other refer the dispute to expert determination. Any other dispute may be litigated.

 

22.5    Expert determination is to be conducted by a suitably qualified, independent expert agreed by the parties or, failing agreement within 7 days, by an expert appointed by the Resolution Institute. The expert determination shall be conducted in accordance with the Resolution Institute Expert Determination Rules (as amended from time to time).

 

23.     Default, Suspension and Termination

 

23.1    The Subcontractor is in default of the Agreement if:

(a)       it fails to comply with any of its obligations under or is in breach of the Agreement;

(b)       being an individual, commits an act of bankruptcy, has a bankruptcy petition presented against them or is made bankrupt; or

(c)       being a company, is placed under official management, has a receiver, liquidator or administrator appointed to it or has a winding up order made in respect of it.

 

23.2    If the Subcontractor does not remedy a default of the Agreement within 3 days after Handdii has given the Subcontractor written notice requiring the default to be remedied then, without prejudice to any other rights or remedies under the Agreement or at Law, Handdii may:

(a)       itself or by others remedy the default, and the costs of remediation (including any administrative, supervision and legal costs) shall be a debt due and payable by the Subcontractor to Handdii; and/or

(b)       take the whole or any part of the Works out of the control of the Subcontractor and complete or engage others to complete the Works at the expense of the Subcontractor, which expense shall be a debt due by the Subcontractor to Handdii and which Handdii may offset (in whole or part ) towards repayment of such debt against any monies which may be or become due to the Subcontractor under the Agreement; and/or;

(c)       by giving a further written notice, temporarily suspend or terminate the Agreement.

 

23.3    If a temporary suspension by Handdii is lifted, the Subcontractor must recommence the Works as soon as reasonably practicable following Handdii lifting the suspension, and the Subcontractor shall not be entitled to make any Claim against Handdii for or arising out of or in connection with such suspension.

 

23.4    In addition to and without prejudice to any of its other rights and entitlements under the Agreement, Handdii may at any time, by notice in writing to the Subcontractor, suspend the Works (or any part of the Works) and/or terminate the Agreement:

(a)       if the Head Contract is suspended or terminated; and/or

(b)       if Handdii reasonably forms the view that the continuation of the Agreement is no longer viable.

 

23.5    Handdii is in default of the Agreement if it fails to pay the Subcontractor the Subcontract Sum in accordance with the Agreement or is placed under official management, has a receiver, liquidator or administrator appointed to it or has a winding up order made in respect of it.

 

23.6    If Handdii remains in default of the Agreement 5 Business Days after the Subcontractor has given it a written notice requiring the default to be remedied, then the Subcontractor may:

(a)       by giving a further written notice, suspend the Agreement; and

(b)       by giving a further final written notice no less than 7 Business Days after its notice of suspension, terminate the Agreement.

 

23.7    If the Agreement is terminated and/or rescinded by either party for whatever reason or is otherwise frustrated:

(a)       then the Subcontractor shall:

(i)        cease the execution of the Works within the time stipulated by Handdii;

(ii)       demobilise and ensure that the Site is left in a safe condition and that the Works are properly secured;

(iii)      hand over to Handdii all documentation and information in its possession or control relating to the Works; and

(iv)      otherwise do all reasonable things to mitigate the cost to the Subcontractor of such termination,

 

23.8    (a), Handdii’s liability to the Subcontractor and the Subcontractor’s entitlement to a Claim (including in contract, tort, negligence, under statute or otherwise) will be limited solely to the total of:

(i)        the unpaid value of the Works completed in accordance with the Agreement prior to termination (to be determined by Handdii in its sole discretion, including on a cost to complete basis, and excluding any margin for profit or overheads), less amounts previously paid to the Subcontractor in respect of such work (including an allowance for any set offs that Handdii is entitled to under the Agreement); and

(ii)       the cost of materials properly ordered and intended for incorporation in the Works as at the date of termination for which the Subcontractor has paid or is legally bound to pay, provided that title in the materials and title to them will pass to Handdii upon payment by Handdii, up to a maximum amount of the balance of the Subcontract Sum (as may be adjusted pursuant to the Agreement) unpaid at the date of termination, and any other amounts expressly payable to the Subcontractor pursuant to the Agreement at the date of termination.

(b)       The Subcontractor acknowledges and agrees that the amounts to which it is entitled under clause 23.7(b) shall be in full and final satisfaction and compensation to the Subcontractor in relation to the termination, recission or frustration of the Agreement or otherwise in relation to the carrying out of the Works under the Agreement.

 

24.     Entire Agreement

 

24.1    This Agreement comprises the entire understanding and agreement between the Subcontractor and Handdii as to the subject matter of the Agreement and all previous agreements, negotiations, warranties, understandings or representations, express or implied, in relation to that subject matter are superseded by the Agreement and have no effect, and no party shall be liable to the other party in respect of same.

 

24.2    The Subcontractor acknowledges that in entering the Agreement, it has not relied upon any representation or undertaking given by or on behalf of Handdii which is not expressly set out in the Agreement.

 

24.3    None of the terms of the Agreement shall be varied, amended, waived, discharged or released (including, without limitation, by an action, omission, conduct or representation) except by further written agreement between the parties.

 

25.     Taxation, Goods and Services Tax

 

25.1    For the purposes of this clause 27, “GST” and “Tax Invoice” have the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

25.2    Unless otherwise indicated, each amount, of whatever description, specified as payable by Handdii to the Subcontractor under the Agreement is expressed exclusive of GST. In addition, at the time any such amount becomes payable, Handdii also must pay to the Subcontractor the GST payable by the Subcontractor in respect of that amount upon the receipt of a valid Tax Invoice from the Subcontractor.

 

25.3    Notwithstanding anything to the contrary, payments to be made by Handdii will not require payment of GST on any amount which is itself inclusive of GST or in respect of which GST has been or should have been previously paid by the Subcontractor or any other party.

 

25.4    The Subcontractor acknowledges and authorises Handdii to issue RCTI’s on its behalf in respect of all payments made under the Agreement.

 

25.5    The Subcontractor must comply with all tax, PAYG, payroll tax and any other taxes or like imposts as required by Legislative Requirements. The Subcontractor and its agents, servants, workers or employees must not hold themselves to be employees’ servants or agents of Handdii. If Handdii incurs a liability for PAYG, payroll tax, workers compensation insurance premiums or otherwise under any other Legislative Requirement as a result of the Subcontractor’s actions, activities or omissions, Handdii is entitled to reimbursed by the Subcontractor for such liability, together with any other associated costs, as a debt due and payable by the Subcontractor to Handdii on demand.

 

26.     Subcontracting and Other Dealings

 

26.1    The Subcontractor shall not subcontract any of the Works or assign the Agreement or any right, benefit or interest under the Agreement without prior consent of Handdii. Handdii may impose conditions on any such consent at its absolute discretion. No consent by Handdii under this clause shall relieve the Subcontractor of any of its obligations or liabilities under the Agreement and the Subcontractor shall be liable for the acts, defaults and omissions of its subcontractors as if they were the acts, defaults or omissions of the Subcontractor.

 

26.2    Handdii may at any time by notice in writing to the Subcontractor novate the Agreement to any other person and require the Subcontractor to enter into a deed of novation in a form acceptable to Handdii (between the Subcontractor, Handdii and the other party nominated by Handdii), so that:

(a)       Handdii is released from further involvement with the Agreement, and ongoing liability to the Subcontractor for payment obligations post novation; and

(b)       The Agreement is taken over by the other party in place of Handdii on the same terms and conditions as applying to Handdii under the Agreement, which party shall covenant for the benefit of the Subcontractor to fulfill the obligations to the Subcontractor under the Agreement post novation.

 

27.     Copyright and Intellectual Property Rights

 

27.1    Copyright in the Plans and Specifications, and any designs or drawings otherwise supplied by Handdii to the Subcontractor, or its subcontractors, remains with Handdii.

 

27.2    All intellectual property rights in all designs and other information specifically provided or prepared by, or on behalf of, the Subcontractor for, or in connection with the works, vests in Handdii on creation subject to reservation of a licence to the Subcontractor allowing use of such designs and other information for the purpose of only carrying out its obligations under the Agreement.

 

27.3    The Subcontractor agrees to keep, confidential and not disclose to any third-party information relating to the commercial terms of the Agreement or any other information or material concerning or relating to the Works which Handdii makes expressly known to be confidential in nature or which could otherwise reasonably be apprehended as being confidential in nature. This clause shall not apply to restrict the Subcontractor from making disclosure to the extent:

 

27.4    Reasonably required to carry out its obligations the Agreement;

(a)       required by Law; or

(b)       for the purpose of the Subcontractor taking legal advice.

 

28.     General

 

28.1    In the interpretation of the Agreement, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it prepared the documents forming part of the Agreement or any part of it.

 

28.2    If a provision in the Agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision that shall be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision, as required by this clause 28.2, that provision is severable without affecting the validity and enforceability of the remaining parts of that or other provisions in the Agreement.

 

28.3    All its obligations, warranties, representations and indemnities given by the Subcontractor and rights of Handdii, arising out of or in connection with the Agreement capable of surviving termination or expiration of the Agreement, shall survive the termination or expiration of the Agreement, each constitute separate and independent obligations from its other obligations under the Agreement and are given with the intent that liability is not confined to breaches discovered prior to the date of the Agreement.

 

28.4    Except as otherwise set out in the Agreement, Handdii may give or withhold an approval or consent to be given under the Agreement in its absolute discretion and subject to any conditions determined by Handdii. Handdii is not obliged to give its reasons for giving or withholding a consent, or for giving a consent subject to conditions.

 

28.5    Each party shall exercise all such powers as are available to it, do all such acts, matters and things and sign, execute and deliver all such documents and instruments as may be necessary or reasonably required to give full force and effect to the provisions of the Agreement.

 

28.6    No waiver or partial waiver will vitiate the remainder of the Agreement which will continue to apply, nor will it prevent the exercise of any other provision or part of this document or any other right arising under it. None of the terms of the Agreement shall be varied, amended, waived, discharged or released except as agreed in writing.

 

28.7    Nothing in this Agreement shall be construed to entitle Handdii or Subcontractor to any rights or liabilities whatsoever of partnership or employer/employee relationship. Both parties acknowledge that the Subcontractor is a contractor of Handdii and that neither the Subcontractor nor its employees are employees or agents of Handdii.

 

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