Conditions of Contract

General Conditions of Contract F1019-220

1. Definitions

In these General Conditions of Contract the following meanings shall apply:

“Purchaser” means Formstruct Unit Trust (ABN 39 850 685 663) referred hereafter as Formstruct.
“Purchase Order” means the written order of the Purchaser for the supply of the Goods / Work.
“Contract” means the agreement between the Purchaser and the Contractor in the form of this Purchase Order together with all attached hereto or incorporated herein by reference including but not limited to the documents identified in Clause 3.
“Sub-Contractor” means any person, firm or corporation who is providing any part of the Goods / Work on behalf of the Contractor
“Contract Price” means the price stated in the Purchase Order.
“Goods / Work” means all material, labour, equipment, documentation, services and all other obligations, duties and responsibilities required to be furnished or performed by the Contractor under the Purchase Order.

2. Contract

The Purchase Order together with all documents attached hereto or incorporated therein by reference shall constitute the entire terms of the Purchase Order and supersedes all previous correspondence and communications. In the absence of a written acceptance by the Contractor, the commencement of any work by the Contractor in pursuance of this Purchase Order shall be deemed an acceptance hereof and a contract shall be formed upon the terms and conditions set forth in the Purchase Order.

3. Precedence of Documents

If the Contractor discovers any inconsistency between the documents comprising the Purchase Order, the Contractor shall forthwith notify Purchaser. In the case of any such inconsistency, it is agreed that the following order of precedence of documents shall apply having (1) as highest precedence:
(1) The Purchase Order cover sheet,
(2) Special Terms and Conditions, if any
(3) General Conditions of Contract,
(4) Specification,
(5) Drawings.

4. Terms of Payment

Unless otherwise stated elsewhere in the Purchase Order and subject to this Clause 4, the Purchase Order value will be paid 45 days following the end of the month of receipt of invoice.

The Purchase Order value includes compensation for all Work, including but not limited to all equipment, documentation, services, labour, travel expenses, shipping, subsistence, material, consumables, overheads and profit related to or associated with the Work or necessary to fulfil the requirements of the Purchase Order, whether or not specifically indicated herein.

The Contractor shall not be entitled to claim advance payment or progress payments nor will such claims be accepted unless prior agreement in writing is given by the Purchaser. If the Contractor is granted progress payment, it will be paid by the Purchaser monthly, against progress claims rendered by the Contractor and provided the Purchaser is satisfied that the amount of Work specified by the Contractor has been carried out and the amount of the claim is reasonable having regard to the total Contract Price and the Work carried out to the date of the claim.

Payment is subject to the following:

  • Provision of a tax invoice in accordance with the GST law (otherwise withholding tax shall be deducted) plus a copy of “Formstruct Inspection & Release Certificate” or an “Inspection & Release Certificate” from Formstruct 3rd Party Agency, where inspection is waived the Contractor shall attach a “Certificate of Compliance”.
  • Subject to Ten percent (10%) cash retention to cover the warranty period defined in Clause 9
  • Agreed Terms of Payment stated in the Special Terms and Conditions, where applicable.
  • Satisfactory receipt of the Goods at the delivery point stated on the Purchase Order.
  • Satisfactory discharge of the Contractor’s obligations under the Purchase Order.
  • Provision of information / details as listed on the “Vendor Data Requirements” form, where applicable.
  • Each claim for payment must be accompanied by a Statutory Declaration regarding Workers Compensation, Pay-Roll Tax and Remuneration.
  • If the contract is a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) or the Building and Construction Industry Security Act 2002 (Victoria), then these acts will apply
  • Any certificate issued by Fromstruct in response to a payment claim is deemed to be a payment schedule for the purposes of that Act; and
  • The authorized nominating authority to whom any adjudication application may be made is the Institute of Arbitrators and Mediators Australia.
  • Any amount paid by Formstruct to any Sub-Contractor of the Contractor pursuant to any notice of claim served on Formstruct by such Sub-Contractor under the Contractors Debts Act 1997 (NSW) or the Building and Construction Industry Security of Payment Act 2002 (Victoria) shall be a debt due and payable by the Contractor to Formstruct.

5. Time for Completion

The Contractor shall proceed with the Work with due expedition and without delay, and shall complete the Work or deliver the Goods by the Completion Date or Dates stated in the Purchase Order. Where the Contract is for the supply of Goods only, completion shall occur when the Goods have been delivered in strict compliance with the requirements of the Contract at the point stipulated in the Purchase Order, or as otherwise notified in writing by the Purchaser. Where the Contract is for Work other than the supply only of Goods, completion shall occur when the Purchaser has accepted that the Work is complete and ready for use.

If the Contractor fails to complete the Work or deliver the Goods by the Completion Date or Dates stated in the Purchase Order, the Contractor shall pay to the Purchaser liquidated damages as stated in the Purchase Order. The payment of liquidated damages shall not limit the Purchaser’s right to enforce any other remedy which it may have. The Contractor shall promptly, and in any event within 2 days of its occurrence, notify the Purchaser of any delay which may affect the Completion Date or Dates stated in the Purchase Order. If the delivery of the Goods or completion of the Work is delayed through any act or omission of the Purchaser its employees or agents, the Purchaser shall grant a reasonable extension of time, but shall be under no obligation to do so if notification of delay has not been made as herein provided.

6. Inspection & Expediting

The Contractor shall provide access to Contractor’s and Sub-Contractors premises as may be required by the Purchaser or the Purchaser’s representative for the purpose of inspection and expediting the work. The Contractor shall provide such information as the Purchaser or the Purchaser's representative may request concerning Contractor's or Sub-Contractors programme of works. The Contractor shall make this a condition of any work placed with Sub-Contractor.

The Purchaser or the Purchaser’s representative shall have the right of inspection of the Goods/ Work during the course of the Purchase Order. The Contractor shall make this a condition of any work placed with Sub-Contractors.

NOTE: Inspection and testing, or a release for shipment of the Goods by the Purchaser, shall not release the Contractor from any obligation under the Purchase Order. The Purchaser or the Purchaser’s representative shall have the right to reject any work that does not conform to the requirements of the Purchase Order whereupon the work rejected shall be rectified by the Contractor at the Contractor’s cost, and within the specified time.

7. Risk and Title

Risk in the Goods and/or the Work shall pass on completion in accordance with Clause 2 above. Title to the Goods and/or the Work shall pass on the earliest of (a) delivery of the Goods or completion of the Work or (b) payment for the Work, in accordance with the terms of these General Conditions of Contract.

8. Quality Assurance

A Quality Assurance system to AS/NZS ISO 9000 standards (or equivalent) shall be maintained by the Contractor to the satisfaction of Purchaser. This shall be evidenced by documented procedures and related records that shall be subject to review by Purchaser.

If required by Purchaser, the Contractor shall submit an Inspection and Test Plan (ITP) for approval by Purchaser before commencing work.

Test Certificates for material and equipment and other QA documentation as specified to be supplied under the Purchase Order must be forwarded to Purchaser in the form of a Manufacturer’s Data Report.

9. Warranty

The Contractor warrants that the Goods will conform to the requirements of the Purchase Order and shall be of good quality and fit for their intended purpose. Unless otherwise stated the warranty period shall be twelve (12) months from the date when the Goods are put into use or operation. The Contractor shall, at its sole cost and expense, replace Goods found to be defective during the warranty period. If the Contractor fails to promptly remedy a defect notified, the Purchaser may without further notice to the Contractor have the defect remedied and the cost of such remedy shall be a debt due by the Contractor to the Purchaser.

This warranty is in addition to any and all warranties offered by the Contractor and/or arising by operation of law and nothing contained herein shall be construed as limiting or restricting such warranties.

NOTE: Warranty provisions stated in the Special Terms and Conditions (if any) will take precedence over the above Warranty Provisions

10. Variations to Work

The Purchaser may vary the Work at any time. The Contractor shall comply with any written variation of the Work issued by the Purchaser, but shall not otherwise vary the Work. The difference in cost if any occasioned by a variation directed by the Purchaser shall be approved by the Purchaser and then added to or deducted from the Contract Price. The Purchaser shall not be liable for any claim for an extension of time for completion on account of such variation unless such claim is received in writing within 2 days of the issue of the variation by the Purchaser and approved by the Purchaser.

11. Assignment and Sub-letting

The Contractor shall not, without the consent in writing of the Purchaser, assign, transfer or sub-let the Contract, or any part thereof, or make any sub-contract with any person, firm, or company for the execution of any portion of the Work other than for the supply of materials or minor details. Any such consent shall not relieve the Contractor from any of its obligations under the Contract. The Contractor shall supply the Purchaser with such number of unpriced copies of sub-orders placed by the Contractor as may be requested by the Purchaser.

12. Indemnity

The Contractor shall indemnify and hold the Purchaser harmless against all and any loss damage cost or expense related to (a) personal injury or death; (b) loss or damage to property; (c) infringement of letters patent, trade mark, registered design, or copyright; caused by or arising out of or in any way connected with the Contract, but the Contractor’s liability to indemnify the Purchaser shall be reduced proportionately to the extent that the act or omission of the Purchaser contributed to the injury or death, loss or damage, or claim.

13. Insurance

In addition to any insurance required pursuant to the Purchase Order, the Contractor shall maintain the following insurance during the term of the Contract (a) Workers compensation including common law cover and/or otherwise in compliance with all the laws and/or regulations of any State and/or Territory with respect to personnel engaged in the performance of the Work; and (b) Public liability insurance covering liability resulting from death or bodily injury and loss or damage to property with a minimum sum insured of $10,000,000. The insurance shall bear a Principal’s Indemnity endorsement. The effecting of insurance shall not in any way limit the liability of the Contractor under any other provision of the Contract. The Contractor shall, on the request of the Purchaser, supply certification of current insurance, and the Purchaser may withhold any payment otherwise due until such time as certification is provided to the reasonable satisfaction of the Purchaser.

14. Termination

If whether before or after the date of the Purchase Order the Contractor becomes bankrupt or insolvent or compounds with its creditors or being a limited company, commences to be wound-up, the Purchaser shall be at liberty by notice in writing to cancel the Order or the Contract, as the case may be, without prejudice to any right or remedy which shall accrue thereafter to the Purchaser. If the Contractor commits a material breach of the terms of the Contract, including without limitation a failure to proceed with the Work with due expedition and without delay, the Purchaser may terminate the Contract and take possession of the Work and have it completed by others at the Contractor’s cost.

15. Compliance with Legal Requirements

The Contractor shall comply with the requirements of all Acts of Parliament and all regulations, by- laws or orders made thereunder and to the requirements of public, municipal or other authorities in any way affecting or applicable to the Work, including without limitation those requirements relating to occupational health and safety and the environment.

16. Governing Law

The Contract shall be construed in accordance with the law of the State or Territory of Australia in which it is issued, and the Contractor agrees to submit to the non-exclusive jurisdiction of the courts of that State or Territory.

17. Waiver

None of these General Conditions of Contract shall be waived, discharges or released at law or in equity except with the prior written consent of the Purchaser in each instant

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