TERMS AND CONDITIONS FOR PURCHASE ORDERS


1. Purchase Order Terms and Conditions:

1.1 The Purchase Order is an offer by the Builder to you to perform the Works on the terms set out in these Terms and Conditions.

1.2 You unconditionally accept the Builder’s offer by signing the Purchase Order or by commencing performance of any part of the Works.

1.3 These Terms and Conditions:

(a) supersede any other terms purporting to govern the Works, including any terms provided by You with any quotation, invoice, or other document; and

(b) apply to all Purchase Orders issued by the Builder.

2. Performance of Works

2.1 You must perform the Works:

(a) with due expedition and complete the Works before the Works Completion Date; and

(b) in accordance with the Purchase Order and these terms and conditions (Agreement).

2.2 You warrant that:

(a) in performing the Works, you will comply, and ensure your personnel comply, with all Legislative Requirements, Australian Standards and the Builder’s lawful directions, policies and procedures;

(b) the Works will be carried out in a proper and workmanlike manner with the standard of skill, care and diligence expected of an experienced and competent supplier of goods or services who regularly performs works of a similar nature to the Works;

(c) the Works will be free from defects, conform with the description in the Purchase Order and comply with the Agreement, all Legislative Requirements and all applicable standards (including Australian Standards);

(d) the Works will be fit for their intended purpose and any other purpose for which the Works are commonly supplied;

(e) You will and obtain all relevant approvals required to lawfully complete the Works;

(f) You have read all material provided to You in relation to the Site, fully inspected the Site and understand and accept all site conditions;

(g) the Builder will be entitled to full and unencumbered ownership of materials supplied by You as part of the Works upon the earlier of payment and delivery; and

(h) Your performance of the Works will not infringe the intellectual property rights of any third party.

  1. Delays and extensions of time

3.1 If You will not be able to complete the Works by the Works Completion Date for any reason, you must notify the Builder in writing within 3 Business Days of becoming aware of any cause of delay.

3.2 On the condition precedent that You give notice in accordance with this clause, if the Builder agrees the delay is reasonable, the Builder will grant a reasonable extension of time to the Works Completion Date.

3.3 An reasonable delay includes any breach of this Agreement by the Builder, any act or wrongful omission of the Builder or its Personnel (except to the extent permitted by or in accordance with this Agreement), any Variation directed by the Builder or any suspension directed the Builder.

3.4 Your entitlement to an extension of time will be reduced to the extent you caused or contributed to the delay or failed to take reasonable steps to mitigate the delay or its effects.

3.5 You are not entitled to payment of any costs, loss, expense or damage in connection with any delay or disruption to Works, whether or not you are entitled to an extension of time.

3.6 If You fail to complete the Works by the Works Completion Date, You will be liable to the Builder, as a debt immediately due and payable, for the liquidated damages rate specified in the Purchase Order.

4. Payment

4.1 Subject to these terms and conditions, the Builder must pay You the Fee as determined by Schedule 1.

4.2 Unless specified otherwise in the Purchase Order, you must give the Builder a payment claim for the Fee upon completion of the Works.

4.3 You acknowledge the Fee is the sole compensation for the Works including but not limited to any equipment, labour, materials, and other items and tools necessary for, or incidental to, the performance of the works.

4.4 If the Purchase Order specifies that the Fee is payable on an hourly rate, on a monthly basis or by milestones, You must claim the Fee progressively by giving written payment claims at the times or upon satisfaction of the milestones and preconditions specified in the Purchase Order.

4.5 Each payment claim must:

(a) identify the Purchase Order to which the claim relates;

(b) detail the Works performed and provide evidence the amount of the Fee being claimed;

(c) not be submitted before the time specified in the Purchase Order.

4.6 You may not issue more than one payment claim for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) in any month for construction work undertaken by You in that month.

4.7 The Builder may deduct or set-off from any amount payable to You any amount which is, or may become, payable by You to the Builder, whether or not the amount is owed under this Purchase Order.

4.8 All final payment claims must be submitted on the last day of the month following completion of your works, or the Builder’s works, whichever comes earlier. Any invoice submitted after this time will be invalid, and not payable by the Builder.

5. GST

5.1 Unless stated otherwise, all amounts payable under the Purchase Order are exclusive of GST.

5.2 If GST is payable on any supply made in connection with the Purchase Order, the recipient will, pay the supplier that amount (less any input tax credits to which the Supplier is entitled). You must deliver a tax invoice, or an adjustment note to the recipient before You are entitled to payment of an amount under this clause.

6. Variations

6.1 The Builder may at any time direct a variation to the Works by issuing a written notice, titled “Variation Order”.

6.2 You must only vary the Works pursuant to a Variation Order issued by the Builder. You acknowledge that the owners of the Site cannot issue variations of the Works.

6.3 In the absence of agreement, the price for a Variation will be the reasonable fees determined:

(a) by the Builder, having regard to any applicable rates or sums included in the Purchase Order; or

(b) in accordance with the benchmark rates set out in the then current Constructions Cost Guide published by Rawlinson Quantity Surveyors and Construction Costs Consultants.

6.4 If You consider that You have been directed to perform a Variation, but have not received a Variation Order, You must give the Builder a detailed written notice within 24 hours of receiving the direction (and in any event before the alleged Variation is due to proceed). Failure to do so will bar You from making a Claim in connection with the alleged Variation or the direction giving rise to it.

7. Indemnity and liability

7.1 You must indemnify and make good the Builder against all Losses in connection with:

(a) any breach by You of these Terms and Conditions;

(b) any wilful default or negligent act or omission by You or Your personnel; and

(c) any personal injury, illness or death, loss of, damage to, or loss of use of property, or infringement of third party intellectual property rights, in connection with the performance of the Works.

7.2 Any indemnity given by You under these Terms and Conditions will be reduced to the extent the relevant Loss was caused or contributed to by the Builder or its Personnel.

8. Insurance

8.1 You must effect and maintain:

(a) broadform public and products liability insurance which provides cover for at least $10,000,000 for each claim or incident on an occurrence basis;

(b) workers compensation insurance, compulsory third party motor vehicle insurance and any other insurance to the full extent required by law;

(c) insurance covering all loss and damage to Your plant, equipment and vehicles (whether registered or unregistered) used in the performance of the Works for their replacement value and insurance for at least $10,000,000 for any one occurrence covering liability to third parties for loss or damage to property or illness, injury or death to persons arising out of the use of any plant, equipment or vehicles (registered or unregistered) in connection with the Works; and

(d) other insurance reasonably required by the Builder.

8.2 You must provide satisfactory evidence of such insurances to the Builder on request.

9. Defects

9.1 At any time during the Defects Liability Period, the Builder may by written notice:

(a) reject any materials provided by You which are defective, in which case You must promptly replace or repair them at your cost; and

(b) require You to promptly reperform, replace, repair or otherwise make good any Works that are defective.

9.2 If you fail to comply at your cost within the time directed by the Builder, the Builder may rectify the defect itself or engage others to do so and all costs the Builder incurs will be a debt immediately due and payable by You.

9.3 If any defect is rectified during the Defects Liability Period, a further 12 month defects liability period will apply in respect of those rectification works commencing on the date they are completed.

10. Suspension

10.1 The Builder may at any time by written notice direct You to suspend the whole or any part of the Works.

10.2 You must recommence the Works as soon as possible after the Builder notifies you in writing that the Works are no longer suspended.

11. Termination

11.1 The Builder may at any time terminate the Purchase Order for convenience by written notice to You.

11.2 If the Builder exercises its right to terminate for convenience, Your sole entitlement will be payment of the unpaid value of the Works completed in accordance with these Terms and Conditions immediately prior to such termination and the cost of materials reasonably and irrevocably ordered for the performance of the Works at the date of termination, provided those materials are required by and delivered to the Builder and fully vest in the Builder upon payment.

11.3 If You breach the Purchase Order or these Terms and Conditions, the Builder may give written notice requiring You to rectify the breach (Default Notice).

11.4 If You fail to do remedy a default within 3 Business Days of receipt of the Default Notice, the Builder may by written notice terminate the Purchase Order with immediate effect and Your sole entitlement will be payment of the unpaid value of the Works completed in accordance with the Purchase Order immediately prior to such termination less any Loss incurred by the Builder as a result of such termination. If this results in a negative balance, that amount will be a debt immediately due and payable by You to the Builder.

12. Claims

12.1 Except as otherwise specified, all Claims by You under or in connection with the Purchase Order must be made in writing within 7 Business Days of the occurrence of the basis for that Claim, with reasonable supporting information.

12.2 If You fail to comply with this clause, You will be absolutely barred from making any Claim in connection with the relevant occurrence.

13. Legislation

13.1 To the extent the Works are residential building work or specialist work, You:

(a) must perform the Works in accordance with the requirements of the Home Building Act 1989 (NSW) and the Home Building Regulation 2014 (NSW) (HB Act) (and any obligations of the Builder under those Legislative Requirements);

(b) warrant that you have obtained, and will maintain at all times while carrying out the Works, a valid licence and insurance to the extent required under the HB Act; and

(c) acknowledge and agree that the warranties set out in section 18B of the HB Act are implied into these terms and conditions.

13.2 To the extent permitted by law, Part 4 of the Civil Liability Act 2002 (NSW) is excluded in relation to all rights, obligations and liabilities of the parties in connection with the Agreement.

14. General

14.1 You must comply with all directions from the Builder that result from the conditions of any head contract to which the Builder is subject.

14.2 The Builder engages you as a contractor not an employee. Nothing in these terms and conditions constitutes a partnership or employment relationship between the parties.

14.3 You must not subcontract, assign or otherwise deal with the whole or any part of the Works without the Builder’s prior written approval. Subcontracting does not relieve You any liabilities or obligations in connection with this Purchase Order.

14.4 A Business Day is any day that is not a Saturday, Sunday or Public Holiday in New South Wales.

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