Empower has issued a Quotation to the Main Contractor, which has been accepted by the Main Contractor.
The Main Contractor is deemed to have accepted these Conditions of Subcontract by:
Accepting the Quotation, and/or
Instructing Empower to proceed with the Works which are the subject of the Quotation.
The Subcontract consists of:
The Quotation;
These Conditions of Subcontract;
The drawings, plans, and specifications provided to Empower prior to the Quotation.
2. Interpretation
In the Subcontract, except where the context otherwise requires:
“Legislative Requirements” includes:
Acts, ordinances, regulations, by-laws, orders, awards, and proclamations of the jurisdiction where the Works are being carried out, and any other relevant codes, including the Building Code of Australia and the National Code of Practice for the Construction Industry;
Certificates, licences, consents, permits, approvals, and requirements of organisations and Authorities having jurisdiction in connection with the carrying out of the Works.
“Main Contractor” means the contractor named in the Quotation for whom Empower is to perform the Works, or any person acting by the Main Contractor’s authority and on its behalf.
“Practical Completion” means the Works reaching the stage referred to in clause 13(a).
“Quotation” means a quotation for works or related goods and services issued by Empower to the Main Contractor.
“Subcontract” means the subcontract between Empower and the Main Contractor for the Works as required under the documents in clause 1(c).
“Subcontract Price” means the total price set out in the Quotation, as adjusted in accordance with the Subcontract.
“Variation” includes a change in the Works as defined in clause 6(a).
“Works” means the works detailed in the Subcontract and includes Variations.
“Act” means the Building and Construction Industry Security of Payment Act 1999 (NSW), the Building and Construction Industry Security of Payment Act 2002 (VIC), and equivalent legislation in any state or territory, as applicable.
“Authority” means any government, administrative body, government body, department or agency of any government or local government authority, or private certifying authority.
“Cladding Ready” means that all blocking and framing prepared by or on behalf of the Main Contractor are straight, plumb and level, scaffold compliant to relevant cladding heights with variance of no more than 4 millimetres over 2 metres; compliant with the Subcontract and otherwise ready for Empower to commence the Works.
“Days” means a day when work is authorised but does not include:
Saturdays, Sundays or any day that has been gazetted or proclaimed to be a public holiday in the locality where the works are being or are to be executed.
Rostered days off that have been (or may in future be) granted to employees in the building industry by a relevant Industrial Court, Commission or Tribunal and which have general application throughout the State to the building industry.
December 23, 24, 27, 28, 29, 30, 31 or January 2, 3, 4 or 5 of the calendar year.
“Empower” means Empower Construction Pty Ltd (ACN 129 883 156), Empower Construction (VIC) Pty Ltd (ACN 626 033 449), or other entity, as specified in the Quotation.
“GST” means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, that Act.
3. Compliance with Drawings and Legislative Requirements
Empower will execute and complete the Works, subject to these Conditions of Subcontract.
The Main Contractor is responsible for the production of the Subcontract drawings, plans, specifications and other Subcontract documents and expressly warrants that such documents are accurate, correct and of an appropriate standard to allow the Works detailed in them to be built. The Main Contractor acknowledges that it is upon the basis of this warranty that Empower has entered into this Subcontract.
Any discrepancy or ambiguity in the Subcontract documents will be resolved:
In the order of precedence in clause 1(c); or
As instructed by the Main Contractor prior to performance of the relevant Works.
If compliance with the Main Contractor’s instruction under clause 3(c) causes Empower to incur more time or cost than otherwise would have been incurred had the instruction not been given, the difference shall be a deemed Variation, priced in accordance with clause 6(h).
4. Main Contractor’s Responsibilities
The Main Contractor must do all things necessary to:
Pay the Subcontract Price to Empower as required by the Subcontract;
Provide instructions to Empower, when required, in a timely and proper manner so as to avoid delay to the Works;
Prior to and during the Works:
Provide and maintain all-weather access, scaffolding, cranage, hoists, lifting and the like, as required for Empower to carry out the Works;
Ensure that the site is Cladding Ready;
Provide all waste and rubbish storage and removal facilities as required for the Works;
Ensure the site is free from rubble, building material and other impediments to the Works;
Maintain a safe work environment and avoid doing things which may affect work, health and safety at the site;
Obtain and provide all Legislative Requirements which affect the Works to Empower, pay all fees and charges in connection with any Legislative Requirement;
If Empower receives any Legislative Requirement after the date of the Quotation and compliance with the Legislative Requirement causes Empower to incur more time or cost than otherwise would have been incurred, the difference shall be a deemed Variation, priced in accordance with clause 6(h).
5. Delay and Extensions of Time
Should the Main Contractor not dissent in writing from the notification within five (5) days, any agreed date for Practical Completion will be extended by the period claimed by Empower.
Delay in notifying or a failure to notify a delay will not of itself prohibit an extension of time.
Empower will use its best endeavours to minimise delay. However, if delay is caused by matters beyond Empower’s control then Empower is not required to incur additional costs to reduce the period of delay unless the Main Contractor agrees to pay and does pay the same.
If any delay to the Works results from any of the matters listed in subclauses (i), (ii), (iii), (iv), (v) or (viii) of clause 5(c), then the Subcontract Price is to be adjusted to include:
The greater of:
$2,500 per day of delay;
Empower’s actual costs and expenses arising from the delay;
$480 per mobilisation to site.
6. Progress of Works
Subject to the Main Contractor’s compliance with clause 3 and clause 4, Empower will commence the Works.
Empower will diligently proceed with the Works and bring them to Practical Completion.
If the progress of the Works is delayed by any of the following causes or conditions resulting from them:
Variations or deemed Variations;
suspension of the works by Empower under the Subcontract or the Act;
site conditions affecting Empower’s ability to carry out Works or requiring work which is a Variation;
the Main Contractor’s compliance or noncompliance with clause 3 or clause 4;
any other act, default, delay or omission on the part of the Main Contractor or other contractor;
civil commotion or industrial dispute affecting any of the trades employed upon the Works or the manufacture or supply of materials for the Works;
inclement weather and the consequences of weather on site access, site safety and or the ability to do Works;
delay by any local or other Authority in granting any relevant Legislative Requirement;
any other cause, thing or matter beyond the reasonable control of Empower;
In any such case Empower is entitled to and will receive a fair and reasonable extension of time to any agreed date for Practical Completion. Empower will notify the Main Contractor of any delay, within a reasonable time.
Variations
The works may be varied by:
increases in the Works;
execution of additional work;
changes in the character or quality of any material or work;
changes in the levels, lines, positions or dimensions of any part of the Works.
Empower is not obliged to vary the Works or carry out any extra work unless it consents, which consent is not to be unreasonably withheld.
If Empower agrees to undertake a Variation, the work constituting the Variation is to be detailed in writing by the Main Contractor to Empower. Writing in this context can be in the form of any document which of its nature confirms that Empower is to do something different to that previously required by the Subcontract including emails, new drawings or product samples.
If Empower believes an instruction constitutes a Variation but the Main Contractor refuses to provide written instructions to confirm that position, then Empower may refuse to perform the Variation.
Empower will notify the Main Contractor of the value of the Variation within a reasonable time and, where practicable, prior to performing the Variation.
Where the Works are decreased the cost of the Work not now required is to be deducted from the Subcontract Price. Cost in this case means the actual expense or amount saved by Empower because the Work is not required to be done. No other deduction is required by reason of the Work or aspect of such Work not being required.
Where the Work to be done is increased, the cost of the extra work is to be added to the Subcontract Price. Empower can choose when and how often to claim payment for variation work and is not required to wait until the next progress claim.
Variation Work will be priced in the following order of precedence:
The amount notified by Empower to the Main Contractor;
If no notice was given, Empower’s cost of the work plus 20% for supervision, overhead and profit;
In any other case, reasonable rates and prices plus 20% for supervision, overhead and profit.
In calculating Empower’s cost of the work which is the Variation:
the rate for labour provided by Empower is $75.00 (excl. GST) per person, per hour with a minimum call-out fee of 4 hours per person (or as otherwise notified by Empower); and
the cost for subcontractor works and materials is the amount paid or payable by Empower.
7. Assignment and Subcontracting
Neither party to this Subcontract is to assign the Subcontract without the written consent of the other party. Such consent will not be unreasonably withheld.
Empower may subcontract any portion of the Works.
8. Insurance
Empower is to effect and maintain for the duration of the Subcontract, a public liability policy of insurance.
Empower shall insure against liability for death of or injury to persons employed or engaged by Empower, including liability by statute and at common law.
Notwithstanding the foregoing:
Empower will only be liable if the injury or damage is due to any negligence, omission or default of Empower, its servants or agents or of any sub-contractor;
Should any portion of the Works be utilised by the Main Contractor, its client or other persons for whom the Main Contractor is responsible during the progress of the Works, Empower shall not be liable for any injury to or the death of any person or loss or damage to property which may be occasioned by reason of the utilisation of the portion of the Works by the person or persons.
9. Suspension of Work
Empower may suspend the Works:
If the Main Contractor fails to pay any progress payment by the due date for payment;
If the Main Contractor fails to comply with any of clauses 4(c)(i), 4(c)(ii), 4(d) or 4(e).
Empower is to resume work as soon as practicable after the cause of the suspension is remedied by the Main Contractor, provided the Subcontract remains active.
Any agreed date for Practical Completion is to be extended by the period of suspension and the period taken to resume work.
If such suspension lasts for more than ten (10) Days, Empower may terminate the Subcontract. In those circumstances, the parties’ rights will be determined as if the Main Contractor had repudiated the Subcontract and Empower had accepted the repudiation and terminated the Subcontract at law.
Practical Completion will be the date possession is taken unless Practical Completion has already been established.
When the Works are practically complete, they will be at the risk of the Main Contractor in all respects.
10. Site Conditions
The Main Contractor warrants that the site will satisfactorily support the Works.
Should Empower consider that the Works as shown on the Subcontract documents need to be varied because of conditions encountered at the site, Empower is to notify the Main Contractor.
Any additional cost arising out of any difference in the conditions encountered below the surface of the site or on site and notified to the Main Contractor pursuant to subclause (b) above are to be a deemed Variation, priced in accordance with clause 6(h).
11. Progress Payments
Empower may claim payment of the Subcontract Price progressively.
If no due date for payment is identified in the Quotation, then the due date will be ten (10) Days after a payment claim is made by Empower.
Empower retains ownership of all goods and materials supplied by Empower and used in the Works until the Main Contractor has paid for those materials in full.
If the Main Contractor fails to make payment of Empower’s payment claim by the due date then, in addition to its other rights under the Subcontract and the Act:
Empower may enter the site and take possession of any unpaid goods and materials, keep or resell the goods and materials to any third party upon taking such possession;
The Main Contractor will be liable to pay interest on the unpaid amount at the rate of 1.00% per month.
12. GST
The Works under this Subcontract are subject to GST. All prices or amounts stated in the Subcontract will be treated as GST exclusive unless stated otherwise.
Non-payment of GST by the Main Contractor is to be treated as equivalent to non-payment of a payment claim under the Subcontract.
13. Practical Completion
The Works are deemed to have reached Practical Completion when they are reasonably fit for their intended purpose.
Empower is to give the Main Contractor notice in writing when the works are practically complete and provide a date for inspection of the Works.
The parties must attend the inspection and record whether the Works have reached Practical Completion and any incomplete or minor defective work to be rectified in an inspection report.
Should the Main Contractor fail to attend the inspection, Empower will proceed with the inspection and provide the inspection report to the Main Contractor. In those circumstances, the Main Contractor is deemed to have accepted Empower’s inspection report in full and the Works will be deemed to have reached Practical Completion from the date notified in the inspection report.
Should the Main Contractor take possession of the Works or any part of the Works either with or without the agreement of Empower, the date of Practical Completion will be…
14. Payment on Practical Completion
On and from Practical Completion, Empower may claim payment for all monies due and payable under the Subcontract.
The Main Contractor must make payment of Empower’s claim under clause 14(a) within ten (10) Days after the claim is made.
Upon receipt of payment of all monies due under clause 14(a), Empower will release any work as executed drawings, certificates or the like to the Main Contractor upon written request.
15. Defects
Empower will rectify any incomplete or defective work recorded in the inspection report under clause 13 as soon as practicable.
The Main Contractor is not entitled to do any work, or to engage an alternate contractor to do work, in relation to any alleged incomplete or defective work by Empower, nor recover any associated cost, unless Empower has been advised in writing of all matters which the Main Contractor requires to be rectified and has afforded Empower a reasonable time to attend to such matters. If the Main Contractor fails to do this then any costs or expense incurred in carrying out the work itself or by another contractor will be solely at the liability of the Main Contractor.
Empower is not obliged to carry out work where the need for the work is due to:
a failure by the Main Contractor to properly protect and maintain the Works;
other contractors’ works;
fair wear and tear caused by use of the Works;
the exposure of the Works to the environment in which they are situated;
a design related matter where the design is not Empower’s responsibility;
a matter beyond the control of Empower.
16. Termination by Empower
In addition to its rights elsewhere under the Subcontract and at law, Empower may terminate the Subcontract upon written notice in the following circumstances:
the Main Contractor fails to pay Empower any progress payment by the due date for payment;
the Main Contractor’s contract with its client is terminated;
the Main Contractor informs Empower or the Main Contractor’s creditors generally that it is insolvent or financially unable to proceed with the contract;
the Main Contractor commits an act of bankruptcy or executes a Deed of Assignment or Deed of Arrangement or enters into a composition or other arrangement with its creditors;
17. Work Health and Safety
The Main Contractor must establish and maintain a work procedure which ensures workplace safety for the Main Contractor, its employees and any other person on the site for which the Main Contractor is responsible. Empower is entitled to receive a copy of the Main Contractor’s site safety plan.
Empower will establish and maintain a work procedure which ensures workplace safety for Empower, its employees and any other person on the site for which Empower is responsible.
Each party will comply with their obligations under statute in relation to work, health and safety.
