Buildcom Purchase Order Terms and Conditions

  • Definitions and Interpretation

    • Act of Insolvency means any of these events in relation to a party: entry into a compromise or arrangement (or announcement of one) under section 411 of the Corporations Act 2001 (Cth); appointment of a managing controller over the whole (or substantially the whole) of its property; or entry into voluntary administration.
    • Agreement means this purchase order to which these Terms and Conditions are annexed and into which they are incorporated.
    • Construction Plant means all appliances, plant, equipment (including scaffolding and formwork), protective clothing and vehicles required for execution of the Works.
    • Insolvency Event means any of these events in relation to a party to the extent that they do not constitute an Act of Insolvency: it is unable to pay its debts as and when they fall due; it becomes bankrupt; it commits an “act of bankruptcy” for the purposes of section 40 of the Bankruptcy Act 1966 (Cth); it has a liquidator, receiver or administrator appointed to it or any of its assets; its financier takes possession of any of its property.
    • Material means any raw, manufactured or fabricated material, goods, machine, equipment, plant (other than Constructional Plant) or thing forming part of the Works.
    • Site means the place where the Works are to be performed.
    • Supervisor means Buildcom’s Supervisor on Site.
    • Works means the work and services to be performed by the Subcontractor described in the Purchase Order as varied under this Agreement including all Materials supplied by it.

  • Commencement and completion

    • The Subcontractor shall commence, execute in a proper and workmanlike manner with due expedition, and complete, the Works, within the period provided in the Agreement, or if not set out in the Agreement, as directed by Buildcom. And not carry out Works over other work a reasonable contractor should know is defective.
    • The Subcontractor shall comply with all instructions from the Supervisor including in relation to its staff and to rectify any of the Works the Supervisor (acting reasonably) considers to be of poor quality to his satisfaction within the timeframe he requires.

  • Documents and further subcontracting

    • All documents (Documents) supplied by Buildcom to the Subcontractor for the purpose of completing the Works are and shall remain the property of Buildcom.
    • The Subcontractor must check all measurements in Documents before executing Works and must immediately seek direction from the Supervisor regarding any inconsistency, ambiguity or discrepancy in or between the Documents.
    • The Subcontractor must carry out at its expense any alterations to the Works arising from any errors in or omissions from Documents supplied by it.
    • The Subcontractor may not subcontract any part of the Works without the prior written approval of Buildcom.

  • Contractor’s employees

    • The Subcontractor shall in the execution of the Works:
      • ensure that it and all personnel employed by it are skilled, qualified and experienced and perform in a careful, skilful and workmanlike manner and in accordance with the best practice of the respective trade or calling; and
      • co-operate with Buildcom, other subcontractors of it, and their respective employees, consultants and agents on Site.
    • The Subcontractor indemnifies Buildcom against any loss or damage suffered or incurred by Buildcom arising from any claim made by the Subcontractor’s employees against Buildcom for loss, damage, injury or death or the payment of wages, salaries, superannuation or other remuneration, leave pay and long service leave pay in connection with the Works for all of which the Subcontractor is solely liable

  •  Variations

    • The Subcontractor shall not vary the Works except in accordance with a direction in writing from Buildcom (Variation Order).
    • The Subcontractor may not claim any costs or an extension of time in relation to any varied work unless the Subcontractor provides written evidence of a Variation Order.
    • The Subcontractor shall carry out any work the subject of a Variation Order (Variation Work) as if such variation were part of the Works under the Agreement.
    • No variation shall invalidate the Agreement. The Contract Sum shall (if appropriate) be adjusted having regard to the value of the Variation Work as determined in accordance with this clause. The Supervisor may by notice to the Subcontractor adjust the date for completion of the Works, having regard to any Variation Work.
    • Unless the parties agree in writing on a price for Variation Work, it shall be valued by Buildcom acting reasonably, taking into account the following:
      • any specific rates or prices prescribed to apply by the Agreement;
      • in the absence of (i) above, such rates or prices in any schedule of rates to the extent that Buildcom considers it is reasonable to use them;
      • to the extent that neither (i) or (ii) above apply, then according to reasonable rates and prices;
      • for a deduction to be made for work which is taken out of the this Agreement, the deduction shall include a deduction for overheads and profit; and
      • if the valuation is of an increase or decrease in a fee or charge, or the imposition of a new fee or charge, the value shall be the actual amount of the fee or charge, without regard to profit or overheads.
    • If pricing of a variation involves daily or hourly rates, the Subcontractor must ensure that the Supervisor verifies completion of the days or hours by signing a record of them each day. Buildcom will not make payment for any un-signed record.

  • Quality of material, workmanship and services, laws and regulations

    • Materials supplied and work and services performed by the Subcontractor must: be free of defects; be of a nature which is suitable for the purposes described by or which are reasonably to be inferred from the provisions of the Agreement by an experienced contractor; be consistent with the nature and character of the Works; meet any relevant Australian Standards and legislative requirements; be executed in accordance with the Agreement, all relevant Documents supplied to it by Buildcom, all manufactures’ requirements, and any directions provided by the Supervisor, which may be oral or in writing.
    • Risk in the Works remains with the Subcontractor until certification of them by the Supervisor and all of the Works carried out by the Subcontractor or rejected by Buildcom shall be renewed or replaced by the Subcontractor at its own expense to the reasonable satisfaction of the Supervisor within the timeframe it directs.
    • The Subcontractor must place all its rubbish in the bins at Site on a daily basis, and is liable as a debt due and payable for Buildcom’s costs and loss in connection with:
    • any damage to anything on Site caused by it, its agents or employees; and
    • any failure of it to remove all of its tools, plant, equipment, debris and rubbish related to the Works and to handover clean Works and a clean Works’ site.
    • The Subcontractor shall (at its cost) comply with all legislation, Australian Standards applicable to it, and obtain and maintain all required permits and licences.
    • Part 1F of the Civil Liability Act 2002 (WA) is excluded and does not apply to this Agreement and the rights, obligations and liabilities between the parties.

  • Constructional Plant and Material

    • Except as agreed between the Supervisor and the Subcontractor, the Subcontractor shall supply at its cost and expense all Constructional Plant required for the Works.
    • Risk in and to the Constructional Plant and Materials supplied by the Subcontractor on Site and elsewhere shall vest in the Subcontractor and it shall at its cost, take all precautions to protect them against loss, damage or destruction.

  • Safety

    • On Site and in its performance of the Works, the Subcontractor shall comply with, and ensure that its employees and agents comply with, the Occupational Health and Safety Act 1984, its regulations, and all Codes of Practice issued thereunder.

  • Warranties

    • The Subcontractor warrants that:
      • it is empowered to enter into and perform under this Agreement;
      • it has not made any misleading or deceptive representations to Buildcom;
      • it has thoroughly inspected the Site, including any prior work, existing structures, materials and conditions and is familiar with the conditions affecting construction activities in the area of and including the Site;
      • it is experienced in carrying out works of a type and nature of the Works; and
      • its performance under the Agreement will not breach any copyright, registered or unregistered patents, designs, trademarks or other proprietary right.
    • The Subcontractor shall assign to Buildcom the benefit of any warranties and guarantees given to it in respect of any Materials supplied by the Subcontractor.
    • If any omission or defect in the Works arising from the Subcontractor’s failure to comply with the terms of the Agreement is not rectified within the time stipulated by Buildcom’s Supervisor then Buildcom may rectify the omission or defect at the Subcontractor’s cost and claim that cost as a debt due from the Subcontractor.

  • Payment procedure

    • Subject to any other payment procedure specified in this Agreement or agreed in writing by the parties, Buildcom shall pay the Subcontractor the amount set out in this Agreement (Contract Sum), as adjusted under this Agreement, within 30 days of the end of a month in which a payment claim is made, provided that the part of the Works to which such payment claim relates has been completed to the reasonable satisfaction of the Supervisor, and the payment claim states the number of this Purchase Order on its face. Only one payment claim may be made per month.
    • The Subcontractor acknowledges and agrees that the Contract Sum makes allowance for all of the risks that the Subcontractor accepts under this Agreement and (as adjusted under this Agreement) is the total amount to which it is entitled and that all payments to it are payment on account only and payment of moneys is not evidence of the value of work completed, an admission of liability, or evidence that work has been executed satisfactorily
    • The Subcontractor shall be registered for Goods and Services Tax (GST), and upon being entitled to payment, shall furnish Buildcom with a tax invoice (the Invoice) in accordance with the requirements of the Australian Taxation Office.
    • Buildcom may, at its election, as cash retention, withhold amounts from any payment made to the Subcontractor but in aggregate not more than 10% of the Contract Sum as adjusted under this Agreement. Buildcom may withhold that cash retention until completion of the later of the end of the defects liability period for the Works, which shall be 12 months from completion of the Works certified by the Supervisor, unless otherwise agreed, and the time that any defect notified to the Subcontractor by Buildcom during the defects liability period is rectified to Buildcom’s satisfaction by the Subcontractor.  The Subcontractor must within 14 days or other time agreed by the parties, rectify at its own cost any defect in the Works notified to it by Buildcom up to the end of the defects liability period and if it does not do so, Buildcom may arrange for another contractor to do the works and its costs of doing so may be recovered from the Subcontractor as a debt due and owing and may be deducted from and paid out of the retention moneys then held by Buildcom.  Despite any claim for payment, Buildcom is not be obliged to pay for any plant or materials which are not incorporated into the Works and, except for any amount of retentions due to the Subcontractor, any amount claimed 60 days or more after completion of the Works.
    • Despite any provision of this Agreement, no payment is required to be made to the Subcontractor for the Works while it is in breach of an obligation or warranty under this Agreement or it has not provided a signed copy of this Agreement to Buildcom.

  • Default & Termination

    • Either party may terminate this Agreement by written notice without prejudice to any of its rights forthwith, if the other party fails to comply with any obligation under
    • If Buildcom terminates the Agreement under this clause, its right to and in relation to retention moneys survives termination and it may withhold from any monies due to the Subcontractor, an additional amount equal to its reasonable estimate of all amounts which are or may become due from the Subcontractor to it (including without limitation for costs of rectification of defects not then known) and may deduct those amounts from the moneys retained once they are incurred. Buildcom shall account to the Subcontractor for such retained sums at the end of the later of the defects liability period or the time when all defects identified within it are rectified.

  • Insolvency

    • If an Insolvency Event occurs then the other party may terminate this Agreement under sub-clause 11(a) as if the party affected by the event was in breach of this Agreement.

  • Extension of time

    • The Subcontractor may only seek an extension of time if its progress of the Works is delayed by reason of any of the following and the delay directly impacts on the critical path of the Works: a breach of the Agreement by Buildcom; an Act of God; or a circumstances beyond the control of the Subcontractor which could not have been reasonably foreseen by a reasonably prudent and experienced Subcontractor.
    • The Supervisor shall assess the Subcontractor’s request for an extension of time, and determine the terms of any extension and notify the Subcontractor.
    • Matters relevant to its assessment are to be determined by the Supervisor and include the extent to which the Subcontractor: contributed to the delay; failed to take any steps necessary to preclude or prevent the cause of the delay; or failed to avoid or minimise the consequences of the delay.

  • Assignment, Non-Waiver, Relationship, Entire Agreement, Severance

    • No assignment of the benefit of the Agreement or purported waiver of a right under it will be valid and binding unless agreed in writing by the parties.
    • The parties’ relationship is principal and independent contractor and no claim shall be made by either of them based on any other purported relationship.
    • The Agreement constitutes the entire agreement between the parties and supersedes all previous arrangements whether oral or in writing.
    • Any part of this Agreement that is invalid or unenforceable is severed to that extent.

  • Indemnity

    • The Subcontractor is liable for and shall indemnify Buildcom against any loss or damage suffered by Buildcom (including legal costs incurred in enforcing or attempted to enforcement of the obligations of the Subcontractor under this Agreement, on the higher of a solicitor client and indemnity basis), arising in connection with the Subcontractor’s breach of this Agreement including any breach of warranty.

  • Consequential loss

    • Buildcom shall not be liable for, and the Subcontractor shall not make any claim for, and waives any entitlement to, any consequential loss arising in connection with this Agreement or the Works being loss beyond the normal measure of direct damages and including, without limitation and whether or not such loss would be within the normal measure of direct damages: indirect loss; loss of profit; loss of revenue; loss of business; loss of actual or anticipated savings; loss of bargain; loss of business reputation; loss of use; cost of capital or costs of substitute goods; facilities or services and loss of opportunity (including opportunities to enter into arrangements with third parties).

  • Insurance

    • The Subcontractor must ensure that any permitted subcontractors, and it, take out prior to commencing the Works, and maintain until completion of the Works, the following, evidence of which, satisfactory to Buildcom, must be provided to Buildcom on its request:
      • employer’s liability insurance including workers compensation or any like insurance as required by law; and
      • if required by Buildcom, any other insurance, including public and products liability, to an amount required by Buildcom.

  • Set-Off

    • Without limiting Buildcom’s rights under this Agreement, Buildcom may deduct from moneys due to the Subcontractor any debt or money due from the Subcontractor to it under the Agreement or otherwise and if those moneys are insufficient, Buildcom may, have recourse to retention moneys and, if they are insufficient, to any security under the Agreement.  This right survives termination of this agreement.

  • Contract

    • To the extent of any inconsistency between this Agreement and any other document forming part of it, this Agreement prevails.  This Agreement comprises the terms of the contract between the parties, and to the extent that any terms and conditions are expressed to apply to any Subcontractor quote or other document referred to in it, they are excluded.