PULITANO COMMERCIAL CONSTRUCTIONS PTY LTD
1.1 The Purchase Order, these terms and all schedules attached to these terms constitute the subcontract (Subcontract).
1.2 The Subcontract is between Pulitano Commercial Constructions Pty Ltd (ACN 626 614 140) (Contractor) and the person
or entity set out in the Purchase Order (Subcontractor).
1.3 The Subcontractor is deemed to have accepted the Subcontract by:
(a) signing the Purchase Order (including electronically);
(b) responding to the Purchase Order expressly or impliedly accepting the Purchase Order (including electronically);
(c) accepting the Purchase Order orally to the Contractor (in which case the Contractor may conrm receipt of the acceptance in writing);
(d) proceeding with the provision of any part of the Goods and Services under the Purchase Order; and/or
(e) receiving any part of the Price in accordance with the Purchase Order.
1.4 The Subcontract comes into existence when the Subcontractor accepts the Subcontract in accordance with its terms.
1.5 The Subcontract is governed by and construed in accordance with the law of the State mentioned in the Purchase
Order and the Parties submit to the jurisdiction of the courts of that State.
2. HEAD CONTRACT
2.1 Without limiting and in addition to any other provision of the Subcontract, the Subcontractor acknowledges that the
Contractor has entered into the Head Contract and agrees to:
(a) carry out the Goods and Services so as to enable the Contractor to comply with the Head Contract and, in any event, to not do anything or omit to do anything which places the Contractor in breach of the Head Contract;
(b) comply with any special conditions in the Purchase Order (if applicable); and
(c) provide the Contractor with all assistance, including the provision of information and documentation, as reasonably requested by the Contractor to enable the Contractor to comply with the Head Contract.
3. THE GOODS AND SERVICES
3.1 The Subcontractor must carry out the Goods and Services:
(a) on and from the Start Date and bring the Goods and Services to Completion by the Date for Completion, or where no Date for Completion applies within a reasonable period of time; and
(b) in accordance with:
(i) the Subcontract and good industry practice;
(ii) all legislation (including, if applicable, the Building Act 1993 (Vic) or the Domestic Building Contracts Act 1995 (Vic)), regulations, codes (including the Building Code of Australia), approvals, licenses and permits applicable to the Goods and Services;
(iii) all relevant requirements of public and statutory authorities; and
(iv) all relevant Australian standards.
3.2 In addition to clause 3.1, the Subcontractor must:
(a) obtain all approvals, certicates, consents, licences, registrations and permits necessary to commence and carry out the Goods and Services, excluding those (if any) particularised in the Purchase Order or any applicable laws (including, if applicable, the Building Act 1993 (Vic));
(b) comply with any reasonable direction given by the Contractor;
(c) obtain and provide to the Contractor the benet of all reasonably and commercially available warranties in connection with the Goods and Services;
(d) ensure that all information and documentation necessary for use, operation or maintenance of the Goods and Services are obtained and delivered to the Contractor;
(e) protect the Goods and Services and the property of the Contractor and the Principal;
(f) ensure the safety and convenience of other people on the Site including the Principal, Contractor and their respective Personnel; and
(g) do all things necessary to enable the Contractor and the Principal to comply with their obligations under the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety Regulation 2017 (Vic).
3.3 Until Completion is achieved, the Subcontractor will be liable for all loss of, or damage to, the Goods and Services and the Site, except to the extent caused by a wrongful act or omission of the Contractor.
3.4 The Subcontractor warrants that the Goods and Services, and all materials and the standard of workmanship used in the Goods and Services, will:
(a) be t for purpose;
(b) conform with the Subcontract and the Head Contract; and
(c) be new, unless expressly provided under the Subcontract.
3.5 Any goods, materials, items of plant or equipment issued to the Subcontractor by the Contractor or Principal must remain the sole and unencumbered property of the Contractor or Principal, as the case may be.
4. CONTRACTOR AND PRINCIPAL SUPPLIED ITEMS
4.1 The Subcontractor acknowledges and agrees that the:
(a) Contractor or Principal may supply or provide items (Supplied Items) and may direct the Subcontractor to use or incorporate these Supplied Items in the Goods and Services;
(b) Contractor does not provide any, and excludes all, warranties, guarantees or representations (whether express or implied) as to the suitability or quality of the Supplied Items for the Goods and Services;
(c) use of the Supplied Items will be at the Subcontractor’s own risk; and
(d) Contractor has no liability to the Subcontractor for any Claim arising out of or in connection with the Supplied Items.
5.1 The Subcontractor acknowledges and agrees that the Contractor has not been granted possession of the Site by the Principal.
5.2 The Contractor must provide sufcient access to the Site to allow the Subcontractor to carry out the Goods and Services, but only to the extent access has been granted by the Principal to the Contractor.
5.3 The Subcontractor acknowledges that the Contractor, the Principal and their respective Personnel may have access to the Site and the Subcontractor has no Claim arising out of their presence on or around the Site.
5.4 The Subcontractor must fully cooperate and coordinate with the Contractor, Principal and their respective Personnel, and other people on the Site and otherwise comply with all industrial, safety and security requirements applicable to the Site.
6. THE SITE
6.1 The Subcontractor warrants that it has:
(a) examined and carefully checked all information relevant to the risks which could affect the Goods and Services;
(b) visited and inspected the Site and its surroundings; and
(c) obtained all appropriate and technical advice on all matters and circumstances concerning the Goods and Services and the Site (including, if applicable, any foundations data).
6.2 The Subcontractor acknowledges and agrees that it has no Claim against the Contractor whatsoever for any matter arising from or in connection with the Site or any conditions on, or affecting, the site.
7. PRICE, INVOICING AND PAYMENT
7.1 For the proper performance of its obligations in accordance with the Subcontract, the Subcontractor is entitled to be paid the Price by the Contractor.
7.2 The Subcontractor may submit a claim for payment to the Contractor:
(a) on the 20th day of each month or on a date mutually agreed between the Parties, from time to time, for Goods and Services performed to the end of that month; and/or
(b) upon completion of all Goods and Services the subject of any Work Order, (Payment Claim).
7.3 With each Payment Claim, the Subcontractor must submit:
(a) a tax invoice for the supply to which the Payment Claim relates; and
(b) all other information and documentation reasonably requested by the Contractor.
7.4 By submitting a Payment Claim, the Subcontractor warrants that all employees’ wages, allowances and statutory levies in respect of the Goods and Services the subject of the relevant Payment Claim have been paid.
7.5 The Payment Claim must state that it is made under the Building and Construction Industry Security of Payment Act 2002 (Vic).
7.6 Within 10 Business Days of receipt of a Payment Claim, the Contractor will issue to the Subcontractor a payment schedule identifying the Payment Claim to which it relates and stating the amount (if any) which is to be paid (Payment Schedule). If the amount in the Payment Schedule is different from the amount in the Payment Claim, the Contractor must provide reasons why.
7.7 Within 30 Business Days after receiving the Payment Claim, the Contractor must, subject to clause 7.8, pay the Subcontractor the amount set out in the relevant Payment Schedule.
7.8 The Contractor may deduct from monies otherwise due to the Subcontractor any amount necessary to satisfy any claim or any entitlement the Contractor may have against the Subcontractor.
8.1 The Subcontractor must effect and maintain the insurances in the amount and for the period set out in the Purchase Order or as required by the any applicable laws (including, if applicable, the Domestic Building Contracts Act 1995 (VIC)), on terms and with an insurer approved by the Contractor or as required by any applicable laws.
8.2 Upon request by the Contractor, the Subcontractor must provide written evidence, to the Contractor’s satisfaction, of the Subcontractor’s compliance with clause 8.1.
9.1 The Contractor is entitled to direct the Subcontractor to increase, decrease or change the Goods and Services or the timing or sequence of the Goods and Services (Variation) and the Subcontractor must comply with any Variation.
9.2 If the Contractor directs a Variation to delete any part of the Goods and Services, the Contractor may itself, or have others, carry out those Goods and Services and the Subcontractor will have no Claim.
9.3 If the Subcontractor considers that there is a Variation, but the Contractor has not issued a written direction stating that it is given under clause 9.1, the Subcontractor must notify the Contractor within 5 Business Days after receipt of the relevant direction. If the Subcontractor does not provide such notice, the Subcontractor will have no Claim against the Contractor.
9.4 Within 5 Business Days of receipt of a direction to perform a Variation under clause 9.1, the Subcontractor must provide an estimate of the value of the Variation and any other information reasonably requested by the Contractor.
9.5 The Contractor will determine the adjustment to the Price for any Variation.
10.1 The Subcontractor must progress the Goods and Services in a timely manner and achieve Completion by the Date for Completion.
10.2 When the Subcontractor considers that Completion has been achieved it must notify the Contractor.
10.3 The Contractor will respond to the Subcontractor’s notice issued under clause 10.2 within 10 Business Days, either:
(a) nominating the date on which Completion was achieved; or
(b) listing the matters that need to be completed before Completion can be achieved.
10.4 Notwithstanding that the Subcontractor has not given notice under clause 10.2, the Contractor can issue a notice nominating the date on which Completion has been achieved.
11.1 The Contractor may extend the Date for Completion of the Goods and Services if and only if:
(a) the Goods and Services have been delayed due to the Contractor’s breach of the Subcontract;
(b) the Subcontractor has provided the Contractor with written notice of the delay within 5 Business Days of rst becoming aware of the cause of the delay; and
(c) the Subcontractor has taken all reasonable steps to avoid the delay and to minimise its effects.
11.2 The Subcontractor will not be entitled to an extension of time where more than one event causes concurrent delays and the cause of at least one of those events is not a cause described in clause 11.1(a).
11.3 The Contractor may, in determining whether the Goods and Services have been delayed, have regard to whether the Subcontractor can reach Completion by the Date for Completion without an extension of time.
11.4 Any extension of time granted under this clause 11 will be the Subcontractor’s sole and exclusive remedy for any delay or disruption arising from or in connection with the Goods and Services.
11.5 Notwithstanding that the Subcontractor has not complied with clause 11.1, the Contractor may, in its sole discretion and benet (and without being under any obligation to do so), extend the Date for Completion.
12. LIQUIDATED DAMAGES
If Completion is not achieved by the Date for Completion, the Subcontractor must:
(a) to the fullest extent permitted by law, indemnify the Contractor against any cost, liability, loss, damage, claim or proceeding which the Contractor incurs in connection with the Head Contract; and
(b) if applicable, pay the Contractor on demand Liquidated Damages for each day from the Date for Completion until (and including) the date Completion is achieved.
13. SUBCONTRACTOR’S WARRANTIES
13.1 Without limiting any other provisions in the Subcontract, the Subcontractor warrants that:
(a) there are no legal restrictions preventing it from agreeing to the Subcontract;
(b) the information it provides is true, correct and complete;
(c) it will not infringe any third party rights in performing the Goods and Services;
(d) it will ensure that the Site is safe, free of harmful materials or substances and otherwise complies with all relevant workplace health and safety laws and standards (including any workplace health and safety requirements of the Contractor or the Principal);
(e) if applicable, it holds a valid ABN which has been advised to the Contractor;
(f) if applicable, it is registered for GST purposes;
(g) it will not employ, canvass, solicit, entice, induce or attempt to employ the Contractor’s employees or contractors;
(h) it will comply, and ensure that its Personnel complies, with the provisions of the Subcontract, all applicable laws (including, if applicable, the Fair Work Act 2009 (Cth), the Fair Work Regulations 2009 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth)) and the Contractor’s policies and procedures notied to the Subcontractor, including workplace health and safety, anti-discrimination and equal employment opportunity Laws and policies;
(i) it is an independent contractor and it and its Personnel are not employees of the Contractor and accordingly, are not entitled to the benet of any superannuation payments, leave entitlements or any other employee benets from the Contractor;
(j) if applicable, the Subcontractor is registered under Part 11 of the Building Act 1993 (VIC); and
(k) if the Domestic Building Contract Act 1995 (VIC) applies to the Goods and Services provided by the Subcontractor, the Subcontractor warrants that:
(1) the Goods and Services will be carried out in a proper and workmanlike manner and in accordance with the Subcontract
(2) all materials used in the provision of the Goods and Services will be good and suitable for the purpose for which they are used and that those materials are new;
(3) the Goods and Services will be carried out in accordance with, and will comply with, all laws and legal requirements, including, but not limited to, the Building Act 1993 (VIC);
(4) the Goods and Services will be carried out with reasonable care and skill and will be completed by the Date for Completion;
(5) if the Goods and Services consists of the erection or construction of a home, or is intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, the home will be suitable for occupation at the time of Completion; and
(6) the Goods and Services and any material used in carrying out the Goods and Services will be reasonably t for the purpose for which the Goods and Services are required or will be of such a nature and quality that it will be reasonably expected to achieve the result which the Principal or Contractor wishes the Goods or Services to achieve.
14.1 The Subcontractor must promptly rectify any Defects, as they arise during performance of the Goods and Services, and any Defects which arise after Completion.
14.2 If the Subcontractor fails to rectify any Defect within 5 Business Days after being directed to do so by the Contractor, the Contractor may rectify the Defect and the costs incurred by the Contractor will be a debt due from the Subcontractor to the Contractor.
14.3 If any of the Goods and Services are wholly or substantially Defective so as to prevent or inhibit their intended use, the Subcontractor warrants to replace or re-supply the relevant Defective Goods and Services (at its own cost).
15.1 The Subcontractor must not, without the written approval of the Contractor, assign, novate or subcontract any of the Goods and Services or any payment, benet or interest under the Subcontract.
15.2 Subcontracting, assigning or novating will not relieve the Subcontractor of any of its obligations under the Subcontract.
16. INTELLECTUAL PROPERTY
All intellectual property rights in, and ownership of, all reports, designs, drawings, information and other documents created in respect of the Goods and Services vest in the Contractor.
The terms of the Subcontract, and any information or documentation provided to the Subcontractor in connection with the Subcontract, must be kept condential by the Subcontractor and may only be used by the Subcontractor for the purpose of performing its obligations under the Subcontract.
18.1 If the Subcontractor commits a breach of the Subcontract, the Contractor may give the Subcontractor a written direction requiring the remedy of the breach by a specied time.
18.2 If, by the time specied in the written direction the Subcontractor fails to remedy the breach, the Contractor may take the Goods and Services out of the hands of the Subcontractor (in whole or part) or otherwise terminate the Subcontract.
(a) the Subcontractor is subject to an insolvency event or other circumstance as would reasonably prevent the Subcontractor from performing its obligations under the Subcontract; or
(b) the Head Contract is terminated, the Contractor may, in addition to any other right, immediately terminate the Subcontract by written notice to the Subcontractor.
18.4 If the Contractor exercises its rights under:
(a) clauses 18.2 or 18.3(a); or
(b) clause 18.3(b) and the termination of the Head Contract was caused or contributed to by the Subcontractor, any resulting costs or loss incurred by the Contractor will be a debt due from the Subcontractor to the Contractor.
19. DISPUTE RESOLUTION
19.1 If a dispute or difference arises out of or in connection with the Subcontract (dispute), either party may give notice to the other party setting out the details of the dispute.
19.2 Within 5 Business Days of receiving the notice of dispute, the Parties must, by their managers, meet to resolve the dispute.
19.3 If the Parties do not resolve the dispute within 15 Business Days of receipt of the notice of dispute, the dispute may be referred to litigation.
19.4 If a dispute relates to a matter connected with the Head Contract, the Contractor may refer the matter for resolution under the Head Contract, in which case clauses 19.2 and 19.3 will not apply, and the Subcontractor will be bound by the outcome of the dispute resolution procedure under the Head Contract (provided the Contractor does not settle the dispute without the Subcontractor’s prior approval, not to be unreasonably withheld or delayed).
19.5 Nothing in this clause 19 will prejudice the right of either party to institute proceedings to seek injunctive or urgent declaratory relief.
20.1 Each time a taxable supply is made by the Subcontractor to the Contractor under the Subcontract the Subcontractor must, before the Contractor makes payment for the supply, provide the Contractor with a tax invoice which complies with the GST Law for that supply.
20.2 Except expressly stated in the Subcontract, all amounts payable to the Subcontractor do not include an amount on account of GST.
21.1 A notice (and other documents) will be deemed to have been given if addressed or delivered by hand, mail or email to the relevant address last communicated in writing to the person giving the notice.
21.2 A notice will be deemed to have been received:
(a) if by hand delivery, upon delivery;
(b) if by post, 3 Business Days after dispatch; and
(c) if by email, the earlier of a human-generated response acknowledging receipt of the email or the expiration of 12 hours after sending.
22. LIABILITY AND INDEMNITY
22.1 The Subcontractor is liable for the acts and omissions of its Personnel, assignees and novatees as if they were done by the Subcontractor.
22.2 To the fullest extent permitted by law, the Subcontractor must indemnify the Contractor against any cost, liability, loss, damage, Claim or proceeding arising from or in connection with:
(a) any breach of the Subcontract;
(b) any breach of the Head Contract by the Contractor;
(c) personal injury to, or the death of, any person or loss of, or damage to, any property;
(d) the Subcontractor (or any of its Personnel) claiming that it is one of the Contractor’s employees or that it is entitled to any employee benets or entitlements;
(e) any court, tribunal or authority whatsoever determining that the Subcontractor (or any of its Personnel) are deemed as one of the Contractor’s employees; and
(f) any infringement of a registered design, trade mark, copyright or other protected intellectual property right, arising out of or in connection with the Goods and Services or the Subcontract, except to the extent caused by a wrongful act or omission of the Contractor.
22.3 Despite any provision to the contrary, to the maximum extent permitted by law, the Contractor’s liability under or in connection with the Subcontract will be reduced proportionately to represent the share of responsibility that the Contractor has for any Claim according to the extent to which Contractor’s breach of any provision of the Subcontract or Contractor’s negligent or wrongful acts or omissions caused or contributed to the Claim in the course of performing its obligations under the Subcontract. Subject to this clause 22.3, the Parties agree that Part IVAA of the Wrongs Act 1958 (Vic) does not apply.
22.4 Despite any provision to the contrary, to the maximum extent permitted by law, the Contractor shall not be liable under the Subcontract for any loss of prot (including anticipated prot), loss of benet (including anticipated benet), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/ or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
22.5 This clause 22 will survive the termination or expiry of the Subcontract.
23.1 Relationship of Parties: The Subcontract is not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
23.2 Care of the Goods and Services: The Subcontractor will be responsible for the care of the Goods and Services until Completion and at any time after Completion when the Subcontractor is required on the Site to rectify any Defects.
23.3 Severance: If any provision (or part of it) under the Subcontract is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under the Subcontract cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from the Subcontract and the remaining provisions (and remaining part of the provision) of the Subcontract are valid and enforceable.
23.4 Survival: Each clause of the Subcontract which by its nature survives termination, including all indemnities, survives termination of the Subcontract.
23.5 Joint and Several Liability: Where the Subcontractor constitutes two or more individuals or entities, they will each be jointly and severally liable under the Subcontract.
23.6 Jurisdiction & Applicable Law: The Subcontract is governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
23.7 Entire Agreement: The Subcontract, represents the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
23.8 Further Assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to the Subcontract and their obligations under it.
24.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia or 27, 28, 29, 30 or 31 December.
24.2 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense, or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort, equity, or statute, whether indirect, incidental, special, consequential, and/or incidental, and whether involving a third party or a Party to the Subcontract or otherwise.
24.3 Completion means that the Contractor has stated in writing that the:
(a) Goods and Services are to the Contractor’s reasonable satisfaction, except for minor Defects which will not inconvenience the Contractor or the Principal;
(b) Subcontractor has given the Contractor all approvals required by the Subcontract; and
(c) Subcontractor has removed all constructional plant from the Site and the Site is clean and tidy.
24.4 Contractor means as dened in clause 1.2.
24.5 Date for Completion means the date so described in the Purchase Order, as may be amended in the Subcontract.
24.6 day means calendar day.
24.7 Defects means any non-compliance of the Goods and Services with the requirements of this Subcontract and any specications or requirements issued by the Contractor and Defective has a corresponding meaning.
24.8 Goods and Services means the whole of the goods and services described in the Purchase Order, to be executed in accordance with the Subcontract, and includes Variations. Items not specically mentioned in the Subcontract but which can reasonably be inferred or are necessary for the satisfactory completion of the Goods and Services must be provided by the Subcontractor and will form a part of the Goods and Services.
24.9 GST means GST as dened in the A New Tax System (Goods and Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
24.10 Head Contract means the contract between the Principal and the Contractor under which goods and services comprising the Goods and Services are to be carried out.
24.11 Liquidated Damages means if applicable, the liquidated damages particularised in the Purchase Order.
24.12 Normal Business Hours means 7am to 3pm Monday to Friday.
24.13 Parties means the Contractor and Subcontractor.
24.14 Personnel means sub-subcontractors, consultants, employees, agents or other persons engaged by either Party (as the case may be), or in the case of the Principal or the Contractor, their invitees onto the Site.
24.15 Price means the amount particularised in the Purchase Order as may be varied in accordance with the Subcontract.
24.16 Principal means the principal under the Head Contract as particularised in the Purchase Order.
24.17 Purchase Order means the purchase order, attached to, and forming part of, the Subcontract.
24.18 Site means the site or property particularised in the Purchase Order.
24.19 Start Date means the date particularised in the Purchase Order.
24.20 Subcontract means as dened in clause 1.1.
24.21 Subcontractor means as dened in clause 1.2.
24.22 Variation has the meaning given to it in clause 9.1.