Building Maintenance and Construction

Conditions

Subcontract General Terms & Conditions

1. Definitions and Interpretation

1.1

Definitions

In this Contract, except where the context otherwise requires:

Australian Standards means standards and codes published by Standards Australia.
Business Day means any day which is not a Saturday, Sunday, public holiday or statutory holiday in Western Australia. Saturday, Sunday or public holiday.

‍Certificate of Practical Completion means written notice issued by Yurra Building pursuant to clause 10.1(c) confirming that Practical Completion has been achieved and the Date of Practical Completion.

‍Claim means any claim, proceeding, cause of action, action, demand or suit (including by way of a claim for contribution or an indemnity).

‍‘Consequential Loss’ means:

(a)

loss of income, profit, anticipated profit, revenue, business, production, opportunity or anticipated savings;

(b)

the cost of capital or other financing costs (other than to the extent such costs are included in the calculation of liquidated damages or the assessment of general damages arising out of or in connection with delay);

(c)

loss of use;

(d)

loss of goodwill; and

(e)

penalties payable under other agreements, but excludes any loss arising from, or in connection with:

(f)

any statutory fine arising from any breach of law by the other party;

(g)

personal injury, sickness or death;

(h)

damage to property caused or contributed to by a party;

(i)

criminal acts of, fraudulent acts or omissions of, and fraudulent misrepresentation by, a party;

(j)

wrongful acts committed by a party with a reckless indifference to the consequences;

(k)

wilful default by a party;

(l)

the abandonment of this Contract;

(m)

matters that cannot be excluded at law; and

(n)

any matter which is the subject of a third-party claim against the Principal and for which the Subcontractor has given an indemnity under this Contract provided that the Principal has taken reasonable steps to limit or avoid such loss.

Contract Schedule means the document entitled Contract Schedule forming part of the Contract.

Contract means the agreement between Yurra Building and the Subcontractor recorded by the Contract Documents.

Date for Practical Completion means the date for Practical Completion in the Contract Schedule as adjusted by the Contract.

Date of Practical Completion means the date certified by Yurra Building in a Certificate of Practical Completion.

Dispute means any dispute, difference or issue between the parties arising out of or in connection with this Contract or the provision of the Works.

Head Contract means any agreement between Yurra Building and a Principal, as identified in the Contract Schedule.

Identified Delay means any:

(a)

any act omission of Yurra Building; or

(b)

any other cause which is expressly stated to be a cause for an extension of time which causes the performance of the Works to be delayed.

Intellectual Property means all copyright and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.

Legislative Requirements includes:

(a)

Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and State or Territory where the Works or the particular part of the Works is being carried out;

(b)

certificates, licences, consents, permits, approvals and requirements of any organisations or authorities having jurisdiction in connection with the carrying out of the Works;

(c)

standards, codes and guidelines applicable to the Works;

(d)

the terms and conditions of any approvals obtained or required to be obtained from any applicable authority or statutory body including but not limited to any applicable development application approvals and building permits; and

(e)

any fees or charges payable in connection with (a), (b), (c) or (d)

Material Breach means the Subcontractor’s failure to:

(a)

provide security;

(b)

provide evidence of insurance;

Personnel means a parties’ directors, officers, employees, consultants, subcontractors or agents.

Practical Completion is the stage in the execution of the Works when the Works are complete except for minor omissions and minor defects (Practical Completion Defects) which do not affect the use or occupation of the Works, and all other information has been provided which, in the opinion of Yurra Building, is essential for the use, operation and maintenance of the Works.

Practical Completion Defects means any defects or omissions in the work under the Contract existing at Practical Completion.

Principal means the Principal to the Head Contract, as identified in the Contract Schedule.

Schedule of Rates means the schedule of rates for work in Schedule 1.

Scope of Works means the work, including any design work, specified in Schedule 1.

Site means the lands and other places to be made available and any other lands and places made available to the Subcontractor by the Contractor for the purpose of the Contract as identified in the Contract Schedule.

SOPA Business Days means a day other than:

(a)

Saturday, Sunday or public holiday; or

(b)

any other day that falls between 22 December in any year and 10 January in the following year (inclusive).

WHS means work health and safety.

WHS Legislation means all WHS legislation that applies to the Works and WUC including but not limited to the Work Health and Safety Act 2020 (WA) and any associated regulations.

WHS Requirements means the WHS Legislation and WHS guidance material that applies to the Works and WUC from time to time, including but not limited to:

(a)

any relevant Australian Standards;

(b)

any relevant Codes of Practice or guidance material published by the Western Australian Department of Energy, Mines, Industry Regulation and Safety, or other WHS regulator or authority;

(c)

any licences, terms or conditions imposed by any government, WHS regulator or authority.

Works means the work described and inferred by the Scope of Works and any variations to the Scope of Works varied in accordance with the Contract and any other supply of plant, equipment, materials and services incidental to and necessary for the performance of such work.

(a)

The Subcontractor acknowledges that:

(i)

other parties may be undertaking work on or adjacent to the Site;

(ii)

it shall have no Claim against Yurra Building for time or costs by reason of other parties carrying out works and services at or on the Site at the same time as the Subcontractor.

2. Time

2.1

Extension of Time

The Subcontractor must undertake with due diligence and without delay so as to bring the Works to Practical Completion by the Date for Practical Completion.

2.2

Notice of Delay

As soon as the Subcontractor becomes aware that the performance of its Works may be delayed beyond the Date for Practical Completion, it must give Yurra Building 5 Business Days written notice (Notice of Delay).

2.3

Claim for an Extension of Time (EOT)

(a)

If an Identified Delay causes the progress of the Works to be delayed, the Subcontractor may submit a written claim for an extension of time to the Date for Practical Completion (Claim for an EOT).

(b)

Claims for EOT under must:

(i)

Be given within 10 Business Days of the conclusion of the delay caused by the Identified Delay;

(ii)

Give details of the Identified Delay and the period of EOT claimed;

(iii)

Give details of the steps that the Subcontractor has taken to mitigate the effects of the delay; and

(iv)

Be accompanied by any other documents or information which Yurra Building reasonably requests.

2.3

Liquidated Damages

(a)

If the Subcontractor fails to reach Practical Completion by the Date for Practical Completion, the Subcontractor must pay Yurra Building liquidated damages at the rate set out in the Contract Schedule until the Date of Practical Completion or the date that the Contract is terminated, whichever occurs first.

(b)

Yurra Building may deduct and set-off any liquidated damages owed to Yurra Building by the Subcontractor pursuant to this clause 2.4 against any amount due to the Subcontractor under the Contract.

3. Work Health and Safety

(a)

The Subcontractor must:

(i)

comply with all applicable WHS Laws and ensure the health and safety of all persons on the Site at all times.

(ii)

ensure that the Subcontractor’s officers, employees, agents, subcontractors and representatives comply with all WHS Laws in connection with the carrying out of any work under this Contract and:

comply with all applicable health, safety and environment regulations, codes of practice and standards;

comply with any conditions issued by [insert client name] relating to safe working practices and environmental protection, including any occupational health and safety procedures;

have the required safety equipment to perform the works, including all personal protective equipment and clothing;

obey all Site rules, signs, policies and instructions pertaining to the Site; and

must keep the Site clean and regularly remove rubbish and waste off Site. The Supplier's responsible work area is to be left in a clean and safe state at the completion of each working day.

(b)

Without limiting the Subcontractor’s obligations under the WHS Laws, if a Notifiable Incident (as defined in the WHS Act) occurs in relation to any work performed under this Contract, the Subcontractor shall immediately inform Yurra Building and provide Yurra Building with all information and documentation reasonably required by Yurra Building.

4. Meetings/events

The Subcontractor shall attend periodic meetings as may be required by the Yurra Building.

5. Legislative Requirements

5.1

Compliance with Legislative Requirements

(a)

The Subcontractor shall comply with all Legislative Requirements.

5.2

Approvals

(a)

The Subcontractor must obtain all certificates, licences, permits, consents and approvals required for the Works and shall be deemed to have allowed for all costs and fees associated with this clause in the Contract Sum.

6. Site

6.1

Access and use of Site

(a)

The Subcontractor shall not have exclusive possession of the Site but shall be provided with sufficient access to the Site to enable the Subcontractor to execute the Works.

(b)

Yurra Building may, acting reasonably, direct the Subcontractor to remove any Subcontractor’s Personnel from the Site. The Subcontractor must promptly comply with such a direction and is not entitled to any adjustment to the Contract Sum, delay damages, extension of time or any other costs incurred in complying with the direction.

6.2

Other Contractors

(a)

The Subcontractor acknowledges that:

(i)

other parties may be undertaking work on or adjacent to the Site;

(ii)

it shall have no Claim against Yurra Building for time or costs by reason of other parties carrying out works and services at or on the Site at the same time as the Subcontractor.

7. Contacts with client/other subcontractors

7.1

Access and use of Site

(a)

Subcontractor shall not communicate with Yurra Building’s Client or Yurra Building’s other subcontractors regarding the Works except as expressly authorised by Yurra Building.

(b)

7.2

Site Conditions

(a)

The Subcontractor is responsible for and assumes the risk of all loss, costs, time or damage caused by Site Conditions encountered during the performance of the Works.

8. Variations

8.1

Directing Variations

(a)

The Subcontractor must not vary the Works except as directed in writing by Yurra Building in a document titled “Variation Order”.

(b)

Yurra Building may at any time prior to the Date of Practical Completion direct the Subcontractor to vary the Works.

(c)

If Yurra Building omits any part of the Works Yurra Building is entitled to have such omitted work carried out by others.

(d)

The work which has been omitted will be valued in accordance with clause 8.4.

8.2

Proposed Variations

Yurra Building may give the Subcontractor notice of a proposed variation. The Subcontractor must within 5 Business Days notify Yurra Building whether the proposed variation can be effected and advise of the effect on the Date for Practical Completion and the cost of performing the variation (including delay costs if any).

8.3

Direction and Instruction by Yurra Building

(a)

If the Subcontractor receives a direction or instruction from Yurra Building which it considers constitutes a variation, it must notify Yurra Building within 5 Business Days (and in any event prior to proceeding with the works the subject of the direction or instruction).

(b)

Upon receipt of notice, Yurra Building must confirm whether or not the direction is a Variation Order or withdraw the direction.

(c)

The Subcontractor must comply with all directions issued.

(d)

All communications between the parties are to be directed to and from the party’s Representative, as described in the Contract Schedule.

8.4

Valuation

(a)

Any variation shall be valued by:

(i)

agreement;

(ii)

using reasonable rates or prices.

(b)

The value of a variation shall be added to or subtracted from the Subcontract. Any deduction shall include a reasonable amount for profit and overheads.

(c)

The value of the variation pursuant to 8.4(a) shall be the Subcontractor’s sole remedy for any loss and damage the Subcontractor suffers by reason of the delay caused by the variation.

8.5

Inspections

(a)

Yurra Building may inspect the Works and if such inspection reveals defects then Yurra Building may direct the Subcontractor to take action to rectify the defect and if the Subcontractor fails to rectify the defect, then Yurra Building may have the work rectified and the cost incurred by Yurra Building shall be a debt immediately due and payable from the Subcontractor to Yurra Building.

9. Warranties

9.1

Subcontractor’s Warranties

(a)

The Subcontractor warrants:

(i)

the Works will be performed in a proper and workmanlike manner and the completed Works shall comply with the Contract Documents, all applicable Australian Standards, and all Legislative Requirements;

(ii)

that it has examined all information relevant to the risks which could affect the calculation of the Contract Sum and the performance of its obligations under the Contract; and

(iii)

that it has visited and examined the Site and informed itself fully as to the Site Conditions.

10. Performance and Payment

10.1

Performance

(a)

The Subcontractor must execute and complete the Works in accordance with the Contract Documents by the Date for Practical Completion.

(b)

When the Subcontractor is of the reasonable opinion that the Works have reached Practical Completion, the Subcontractor must give notice to that effect.

(c)

Upon receipt of notice, Yurra Building will inspect the Works and if completed in accordance with the Contract Documents, issue a Certificate of Practical Completion.

10.2

Payment

(a)

Yurra Building will pay the Subcontractor the Contract Sum.

(b)

The Subcontractor may submit payment claims after the end of each month, for work done;

(c)

Yurra Building will respond to any payment claim by:

(i)

Providing a payment schedule within 15 Business Days of receipt of the payment claim, stating the amount to be paid, and if necessary, reasons for not paying the amount claimed, and the amount to be paid (scheduled amount);

(ii)

Paying the amount of the payment claim (or the scheduled amount as the case may be) within 20 Business Days of receipt of the payment claim.

(d)

The Contract Sum includes allowances for all things necessary and incidental for the performance of the Works.

(e)

The Contract Sum shall not be adjusted due to an increase in the cost of labour, materials, packing, testing, plant, transport or exchange rates.

10.3

Provisional Sums

(a)

If the Subcontractor is directed to carry out a provisional sum relates, the Subcontractor shall carry out the work and the price for the provisional sum work will either be agreed or determined by Yurra Building acting reasonably.

10.4

Supporting documentation

If requested, Subcontractor shall provide supporting documentation with each payment claim to justify the amount claimed.

11. Final Payment

11.1

Final Payment Claim

(a)

The Subcontractor shall provide Yurra Building with a final payment claim within fourteen (14) days of the expiry of the Defects Liability Period. The final payment claim is to include all the Subcontractor’s claims for payment.

(b)

The Subcontractor is barred from making any Claims against Yurra Building in relation to, arising out of or in connection with the Works, unless included in the Final Payment Claim.

11.2

Set-off and withholding

(a)

Yurra Building may set-off or deduct from payments to the Subcontractor any amounts which are owed to Yurra Building by the Subcontractor.

12. Termination and Suspension

12.1

Subcontractor default

(a)

Where the Subcontractor commits a Material Breach of this Subcontract and the Subcontractor fails to remedy the breach within seven days of Yurra Building giving the Subcontractor written notice of the breach, Yurra Building may, by notice in writing:

(i)

terminate the Subcontract as at the date specified in the notice;

(ii)

take all or part of the Works out of the hands of the Subcontractor.

(b)

that it has visited and examined the Site and informed itself fully as to the Site Conditions.

12.2

Termination other than due to default

(a)

This Subcontract may be terminated in whole or in part at any time at the complete discretion of Yurra Building by giving notice in writing to the Subcontractor whereupon Yurra Building will pay the Subcontractor:

(i)

any amounts already due and payable pursuant to clause 10.2;

(ii)

for work executed prior the date of termination but not included in any payment claim,

(iii)

the cost of materials reasonably ordered by the Subcontractor for the Works under the Subcontract, which the Subcontractor is liable to accept, but only where the materials become the property of Yurra Building on payment; and

(iv)

the reasonable costs of removal of temporary Works and constructional plant; provided that the Subcontractor substantiates these amounts to the reasonable satisfaction of Yurra Building.

(b)

Other than in respect of payment set out in clause 12.2(a) above, the Subcontractor shall not be entitled to any other payment or compensation (including for loss of profit) arising out of or in connection with termination pursuant to this clause 12.2.

12.3

Suspension

(a)

Yurra Building may, at any time, for any reason, suspend the carrying out of the whole of any part of the Works by written notice to the Subcontractor.

(b)

The Subcontractor must recommence carrying out the suspended Works as soon as reasonably practicable after written notice from Yurra Building instructing it to do so.

(c)

The Subcontractor must take all reasonable steps to mitigate any costs incurred when recommencing any Works after a period of suspension.

13. Indemnity

(a)

The Subcontractor must indemnify Yurra Building and Yurra Building’s officers, agents and employees against any Claim, loss, expense, liability, fine, penalty or fee suffered or incurred by Yurra Building arising out of or in connection with any act or omission of the Subcontractor, in relation to the Contract or the Works, including in respect of:

(i)

death or personal injury of any person;

(ii)

loss of, or damage to, any tangible property;

(iii)

infringement of Intellectual Property or moral rights; or

(iv)

breach of any Legislative Requirements,

(b)

but the indemnity shall be reduced proportionally to the extent that a negligent act or breach of the Contract by Yurra Building, its officers, employees or agents contributed to the Claim, loss, expense, liability, fine, penalty or fee.

(c)

To the extent allowed at law, Part 1F of the Civil Liability Act 2002 (WA) does not apply to this Subcontract.

14. Insurance

14.1

Insurance requirements

(a)

The Subcontractor must, before commencing work under the Contract, take out and maintain the insurances specified in this clause for the times and in the manner specified in this clause 14, to the limit specified in the Contract Schedule, with reputable and solvent insurers acceptable to Yurra Building. Compliance with this clause 14 does not of itself relieve or reduce the Subcontractor’s obligations under any other provision of this Subcontract.

(b)

The Subcontractor must provide evidence of insurance effected prior to commencement of the Works.

15. Confidentiality

15.1

Confidentiality and Publicity

(a)

The Subcontractor must keep confidential all documents and information provided to it in relation to the Contract or the Works, including the Contract Documents.

16. Dispute Resolution

16.1

Notice of Dispute

(a)

If either party becomes aware of any Dispute between the parties in connection with the Works or the Contract it must, within 14 days of the Dispute arising, give the other party a written notice of the Dispute (Dispute Notice).

(b)

A Dispute Notice given under clause 16.1(a) must identify and provide details of the dispute.

16.2

Conferral

(a)

Within 10 Business Days of a party receiving the Dispute Notice, the parties must meet confer at least once, in a genuine attempt to resolve the Dispute.

16.3

Litigation

(a)

If the Dispute cannot be resolved within a further 10 Business Days after the conferral either party may refer the Dispute to litigation.

16.4

Independent Contractor

The Subcontractor is an independent contractor performing the Contract. The Subcontract does not create any agency, partnership, joint venture, or other joint relationship between the parties.

17. Assignment/subcontracting

Subcontractor shall not assign this Agreement nor any rights or obligations herein, nor subcontract any of the Works, without Yurra Building’s prior written consent.

18. Non-Waiver

A party’s failure or delay in exercising a right relating to this Contract, is not a waiver of that right. Any waiver must be in writing and signed.

19. Governing Law

The validity, enforceability and interpretation of this Agreement shall be determined and governed by the laws of Western Australia

19.1

Entire Agreement

The validity, enforceability and interpretation of this Agreement shall be determined and governed by the laws of Western Australia

20. Consequential Loss

Neither party will be liable to the other party under this Contract, at law, in equity or otherwise for Consequential Loss.

21. Retention and Security

The Subcontractor must provide retention for performance of all and any of its obligations under this Contract. Yurra Building is entitled to call upon retentions upon giving 5 SOPA Business Days written notice where Yurra Building claims that it has incurred cost as a consequence of any act or omission by the Subcontractor.

Yurra Building must release:

(a)

50% of any retention or security held promptly after the issue of the Certificate of Practical Completion; and

(b)

the balance of the retention promptly after the end of the Defects Liability Period.

Terms of Purchase Order

1. Interpretation

1.1

Upon acceptance, this Purchase Order and its terms:

1.1.1

constitute the entire agreement between the parties and supersede all prior agreements;

1.1.2

apply to the exclusion of any terms the Contractor seeks to impose or incorporate, including any Contractor terms incorporated into any quotation whether or not referred to in this Purchase Order.

2. The Works

2.1

The Contractor must carry out the Works described in the Scope of Works, including any variations

2.1.1

in accordance with the drawings, specifications and/or other documents referred to in the Scope of Works;

2.1.2

in a proper and workmanlike manner;

2.1.3

using materials which are both new and fit for their purpose;

2.1.4

in compliance with all laws;

2.1.5

in accordance with any applicable Australian Standards; and

2.1.6

within the times provided in this Purchase Order.

2.2

The Contractor must provide all materials, labour, plant, equipment and tools necessary for the performance of the Works.

2.3

Ownership in all materials supplied by the Contractor will pass to Yurra Building upon delivery to Site or payment, whichever is earlier. The Contractor is responsible for all materials supplied by it until completion of the Works and must indemnify Yurra Building for any damage or loss suffered by Yurra Building should the materials be damaged or lost before then.

3. The Contract Sum

3.1

Yurra Building must pay the Contractor the Contract Sum progressively in the manner provided in (and subject to) this Purchase Order.

4. Security

4.1

If the Purchase Order provides that the Contractor is to provide Security by way of retention, Yurra Building may deduct retention in the percentages described in the Purchase Order from the progress payments as security for the Contractor’s performance of its obligations.

4.2

If at any time any monies become due and payable to Yurra Building (or where otherwise authorised by these terms), Yurra Building may have recourse to the Security.

4.3

If at any time Yurra Building has a bona fide claim against the Contractor, it may retain a sufficient portion of the Security to cover the claim until the claim is resolved. Otherwise, 50% of any remaining Security is to be returned at practical completion and the balance is to be returned at the end of the Defects Liability Period.

5. The Site

5.1

The Contractor:

5.1.1

must satisfy itself that all prior works performed by others on Site, including substrates, are suitable for the performance of the Works;

5.1.2

must not commence the Works over unsuitable prior works unless it has first given Yurra Building written notice and received a written direction to proceed; and

5.1.3

in the absence of being given such written direction to proceed, will be liable for the rectification of the Works resulting from carrying out the Works over unsuitable prior works.

5.2

The Contractor acknowledges and agrees that:

5.2.1

other contractors and workers may be working on the Site at the same time as the Contractor and this may affect the Contractor’s ability to access to parts of the Site from time to time, or ability to enjoy or use any supplied equipment or amenities;

5.2.2

it will comply with all reasonable directions of Yurra Building coordinating access; and

5.2.3

the Contractor has allowed for all risk of disruption to its performance of the Works by other contractors and workers in the Contract Sum.

5.3

The Contractor must at all times:

5.3.1

keep the Site and its working areas clean and tidy and must regularly remove rubbish and surplus material; and

5.3.2

ensure that its workers do not damage the building works on Site.

6. Variations

6.1

Yurra Building may at any time direct the Contractor in writing to vary the Works and the Contractor must comply with the direction. This includes a power to omit any part of the Works and engage others to perform the omitted works.

6.2

The Contractor will only be entitled to payment for any variation if it has received a written instruction from Yurra Building to vary the Works.

6.3

The value of any variation will be as agreed between Yurra Building and the Contractor, and in the absence of agreement will be determined by Yurra Building using any rates referred to in the Purchase Order or reasonable market rates and prices.

7. Time

7.1

It is a fundamental term that the Contractor at all times provides and continually maintains adequate labour and sufficient materials to allow it to complete the Works within the Time for Completion. If, in the opinion of Yurra Building, the Contractor is failing to comply with this clause, Yurra Building may:

7.1.1

engage others to take over and complete all or part of the Works; and

7.1.2

recover the costs of doing so as a debt due and payable by the Contractor to Yurra Building, capable of being set off against the Contract Sum or recovered separately at its absolute discretion.

7.2

The Commencement Date in the Purchase Order is nominal only and the Contractor must commence when called upon to do so and complete the Works within the Time for Completion.

7.3

Where a construction program is attached to or forms part of the Purchase Order or is otherwise given to the Contractor during the course of the Works (including giving any updated program):

7.3.1

Yurra Building gives no warranty that the Works will be able to be commenced or carried out in the sequence in the program;

7.3.2

the Contractor must commence the Works when called upon to do so; and

7.3.3

the Contractor must at its own cost comply with the program (insofar as it relates to the Works) and complete the Works within the duration for the Works shown in the program;

7.4

If the Contractor is delayed in completing the Works by an act of prevention on the part of Yurra Building, and the Contractor gives written claim for an extension of the Time for Completion within 7 days of the delay arising, the Time for Completion will be extended by such period as Yurra Building reasonably assesses. The Contractor will not otherwise be entitled to any extension of the Time for Completion.

7.5

If the Contractor is entitled to an extension of the Time for Completion and it makes a separate written claim for delay costs arising from the act of prevention within a further 7 days of the claim for the extension of time, Yurra Building must pay the Contractor its reasonable direct costs actually and necessarily incurred by reason of the delay. In no other circumstance will the Contractor be entitled to any compensation for delay or disruption to the Works.

7.6

If the Contractor fails to complete the Works within the Time for Completion as extended, the Contractor must indemnify Yurra Building for costs incurred and loss suffered as a result.

8. Progress Payments

8.1

The Contract Sum is payable progressively via submission and assessment of payment claims.

8.2

The Contractor is to submit its payment claim for the value of the Works carried out on Site since the date of the last payment claim by the last working day of each month or such other day as notified by Yurra Building.

8.3

The payment claim is to be in such form and contain such detail as Yurra Building may reasonably require.

8.4

Yurra Building will assess the claim and issue a payment schedule within 15 business days of receipt. If assessed at less than claimed, Yurra Building will provide reasons for doing so in the payment schedule. Yurra Building will make payment of the amount assessed within 25 business days of receipt.

8.5

If requested by Yurra Building, the Contractor must issue a tax invoice to Yurra Building as a pre-condition to payment.

8.6

Interest is payable at 6% pa on overdue monies.

8.7

Any payment or assessment of Yurra Building in respect of a payment claim is on account only

8.8

Whenever any monies become due or owing from the Contractor to YURRA BUILDING under this Purchase Order, Yurra Building may set off those monies against any payment claim.

9. Work Health and Safety

9.1

The Contractor must:

9.1.1

familiarise itself with Yurra Building’s Work, Health and Safety Plan (WHSP) and ensure that each of its workers is familiar with the WHSP, including any documents referenced in the WHSP;

9.1.2

throughout the course of the Works, comply with the WHSP requirements and ensure that each of its workers complies with the WHSP

9.2

Without limiting the above, the Contractor must:

9.2.1

Ensure, so far as is reasonably practicable, the health and safety of all workers on the Site;

9.2.2

Make itself familiar with all applicable work, health and safety legislation;

9.2.3

Create and submit Safe Work Method Statements and as when required for all high risk works as defined in the ‘Work Health and Safety Act 2020’ and ‘WA Work Health & Safety Regulations 2022’ or as may be required by the Contractor;

9.2.4

Consult with workers on issues and changes that may affect their health and safety;

9.2.5

All workers must attend and actively participate in any prestart meeting and toolbox meeting as determined by Yurra Building’s site management.

9.2.6

Ensure each worker has had a proper safety induction including undertaking all of Yurra Building’s inductions prior to commencing any works and is following appropriate safety procedures (including use of PPE);

9.2.7

Ensure that in the event any hazard becomes apparent, its workers immediately stop work and report the hazard for appropriate action before proceeding.

9.2.8

Ensure all workers have the appropriate training and are competent in the use of any plant or tools that they will utilise in the course of their works including providing this documentation to subcontractors.

9.3

If Yurra Building’s site management reasonably forms the opinion that one of the Contractor’s workers is failing to comply with the requirements of this clause and/or that their conduct in any way puts the health and safety of others on Site at risk, they may give the Contractor notice to remove that worker from Site. The Contractor must comply with that notice and promptly provide a suitably trained replacement.

9.4

Any breach by the Contractor of its obligations under this clause is a serious breach entitling Yurra Building to terminate this Purchase Order.

10. Indemnities

10.1

The Contractor must indemnify Yurra Building against any liability relating to:

10.1.1

personal injury or death of any person caused by or contributed to by the Contractor; and

10.1.2

damage to any property caused by or contributed to by the Contractor.

11. Insurance

11.1

The Contractor must effect and maintain the insurances in the Schedule of Particulars on terms acceptable to Yurra Building and as follows:

11.1.1

General public liability insurance covering legal liability to pay for personal injury and property damage arising out of or in connection with the execution of the Works with a limit of liability of not less than $20 million (Public Liability Insurance);

11.1.2

Subject to statutory requirements, workers’ compensation and common law insurance in respect of liability for loss or claim by any person employed or otherwise engaged by the Contractor in or about the execution of the Works (Workers’ Compensation Insurance);

11.1.3

where indicated in the Purchase Order, contract works insurance in respect of property damage to any materials to be used in execution of the Works (including unfixed materials) with a limit of not less than 120% of the Contract Sum (Contract Works Insurance); and

11.1.4

such other insurances specified in the Purchase Order.

11.2

The Contractor must provide to Yurra Building reasonable documentary evidence of the insurances and certificates of currency upon demand.

12. Defects

12.1

The Contractor must promptly rectify any defects in the Works whether occurring before or after the commencement of the Defects Liability Period.

12.2

The Defects Liability Period begins on the date of practical completion and extends for 12 months, or such other time as specified on the Purchase Order.

12.3

During the Defects Liability Period:

12.3.1

the Contractor must at its own cost rectify any defective work notified; and

12.3.2

if it fails to do so, pay Yurra Building the reasonable costs of rectification.

12.4

The provisions of this clause are additional to any rights that Yurra Building has at common law with respect to defective work.

13. Default and Termination

13.1

In the event that:

13.1.1

the Contractor is in substantial breach of any of its obligations;

13.1.2

the Contractor stops or suspends performance of the Works on Site without being directed by Yurra Building to do so;

13.1.3

the Contractor fails to proceed with the Works with reasonable diligence or in a competent manner; or

13.1.4

the Contractor fails to comply with a direction of Yurra Building,

13.2

If the Contractor fails to satisfactorily remedy such breach or failure within that period, Yurra Building may, by serving a Notice of Termination, terminate this Purchase Order.

13.3

Upon termination of this Purchase Order, Yurra Building:

13.3.1

may suspend any further payments of monies to the Contractor;

13.3.1

may set off the additional cost of completing the Works against any monies otherwise due and to the extent of any shortfall have recourse to the security held; and

13.3.1

will otherwise have the same remedies it would have as if the Contractor had repudiated this Purchase Order and Yurra Building had accepted such repudiation.

13.4

The provisions of this clause are in addition to any common law rights that Yurra Building may have with respect to termination or breach.

14. Dispute Resolution

14.1

In the event of a dispute between the parties arising out of or in connection with this Purchase Order, as a condition precedent to taking any action in connection with the dispute:

14.1.1

the disputing party must give written notice of dispute to the other party and the parties must meet within 7 days in an attempt to resolve the dispute; and

14.1.2

if the dispute is not resolved within 7 days then either party is free to commence proceedings in connection with the dispute.

15. Goods and Services Tax

15.1

If the Purchase Order involves a supply of goods or services that constitutes a taxable supply that is connected to Australia within the meaning of the GST Act, the Contractor must ensure that:

15.1.1

It has an Australian Business Number (ABN) and is GST registered and maintains the same prior to making any claim for payment.

15.1.2

It issues tax invoices in a form complying with the GST Act and which will allow Yurra Building to claim an input tax credit.

15.2

If the Contractor does not comply with the preceding clause, Yurra Building has the right to deduct the maximum withholding tax required by law and further the right to deduct the input tax credit it would otherwise be entitled to.

16. Benefit of Warranties

16.1

The Contractor agrees to do all things necessary on its part to ensure that Yurra Building receives the benefit of any warranty:

16.1.1

to be provided by the Contractor under this Purchase Order; or

16.1.2

offered by a manufacturer or supplier in respect of any installed materials or equipment forming part of the Works.

17. Assignment

17.1

The Contractor must not assign any benefit of or under this Purchase Order without the prior written consent of Yurra Building, such consent not to be unreasonably withheld. Yurra Building may assign any benefit of or under the Purchase Order at any time.

18. Civil Liability Act

18.1

The provisions of Part IF of the Civil Liability Act 2002 are excluded for the purposes of this Purchase Order and the performance of the Works.

19. Law

19.1

This Purchase Order is governed by and subject to the laws of Western Australia.

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