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General conditions of contract for services March 2010 Version
2010 Water Corporation
Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may
be reproduced, stored in a retrieval system, or transmitted in any form or by any means
electronic, mechanical, photocopying, recording or otherwise, without the prior written
permission of the Water Corporation.
Inquiries should be addressed to the Contracts Establishment Manager.
Contents
1. Interpretation ...................................................................................... 1 2. Nature of Contract ................................................................................ 2 3. Responsibilities and Obligations of the Contractor ..................................... 3 4. Responsibilities and Obligations of the Principal ........................................ 4 5. Supply of Documents ............................................................................ 4 6. Formal Instrument of Agreement ............................................................ 5 7. Service of Notices ................................................................................. 5 8. Principals Representative and Contractor’s Representative and Personnel .... 5
8.1. Principal’s Representative ............................................................... 5 8.2. Contractor’s Representative ............................................................ 5 8.3. Contractor’s Personnel .................................................................... 5
9. Assignment and Engagement of Subcontractors ....................................... 6 10. Quality Assurance ............................................................................. 6 11. Non-Conforming or Defective Services ................................................. 6 12. Liability ............................................................................................ 7
12.1. Limitation of Liability ...................................................................... 7 12.2. Indemnity by Contractor ................................................................. 7
13. Insurance ......................................................................................... 8 13.1. Public Liability Insurance................................................................. 8 13.2. Insurance of Employees .................................................................. 8 13.3. Motor Vehicle Third Party Insurance ................................................. 9 13.4. Professional Indemnity Insurance .................................................... 9 13.5. Proof of Insurance.......................................................................... 9 13.6. Notification of Death or Injury ......................................................... 9
14. Directions and Variations .................................................................... 9 14.1. Directions by the Principal ............................................................... 9 14.2. Variations ..................................................................................... 9
15. Delay and Extension of Time............................................................. 10 16. Suspension ..................................................................................... 10 17. Payment ........................................................................................ 11
17.1. Claims for Payment ...................................................................... 11 17.2. Payment ..................................................................................... 11 17.3. Timesheets ................................................................................. 11 17.4. Payment of Expenses and Disbursements ....................................... 12 17.5. Time and Place for Payment .......................................................... 12 17.6. Interest on Overdue Payments ...................................................... 12 17.7. Right to Deduct Moneys from Payments .......................................... 12 17.8. Goods and Services Tax ................................................................ 12
18. Parking .......................................................................................... 12 19. Working Hours ................................................................................ 13 20. Clearance to Work Procedure ............................................................ 13 21. Termination, Default, Suspensions and Frustration .............................. 13
21.1. Termination Other than Due to Default ........................................... 13 21.2. Termination due to Default by Either Party ...................................... 13 21.3. Insolvency .................................................................................. 14 21.4. Frustration .................................................................................. 15 21.5. Preservation of Other Rights .......................................................... 15
22. Dispute Resolution .......................................................................... 15 22.1. Notice of dispute .......................................................................... 15 22.2. Conference ................................................................................. 16 22.3. Elevation clause ........................................................................... 16 22.4. Instituting proceedings ................................................................. 16 22.5. Summary Relief ........................................................................... 16
23. Severability .................................................................................... 16 24. Civil Liability Act 2002 ..................................................................... 17 Annexure Part A
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1. Interpretation
In the Contract, except where the context otherwise requires:
Item means an Item in Annexure Part A;
Bid means the written offer by the Contractor to perform the
Services;
Commencement
date
means:
a) the date of commencement of performance of the Services
stated in Item 7 a); or
b) the period from the date of the notice of acceptance during
which the Contractor shall commence the performance of the
Services as stated in Item 7 b);
Completion date means:
a) the date for completion of performance of the Services
stated in Item 8 a), or
b) the last day of the period in Item 8 b);
or as extended by the Principal under clause 16;
Contract means the agreement between the Principal and the Contractor;
Contractor means the contractor stated in Item 4 a);
Day means calendar day;
Dispute Has the meaning in clause 22
Documents includes information stored by electronic and other means;
Key personnel means those Personnel stated in Item 24
Legislative
requirements
includes:
a) Acts, Ordinances, regulations, by-laws, orders, awards and
proclamations of the Commonwealth and the State or
Territory applicable to the Services; and
b) certificates, licences, consent, permits, approvals and
requirements of organisations having jurisdiction applicable
to the Services;
Notice of
acceptance
means the written acceptance of the bid by the Principal;
Operating licence means the licence issued, from time to time, to the Principal
under the Water Services Licensing Act 1995 (WA);
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Personnel means any person, including Key Personnel stated in Item 24 and
persons provided by any subcontractor under the Contract,
responsible for the provision of all or any part of the Services on
behalf of the Contractor;
Principal means the principal stated in Item 2 a);
Services means those services described in the documents listed in Item 1
together with those activities which the Contractor is required to
carry out under the Contract;
site means the Principal’s premises or any other place the Principal
designates (other than the Contractor’s premises) for the
performance of the Services; and
working director means a working director of the Contractor pursuant to the
Workers’ Compensation and Injury Management Act 1981 (WA);
and like words have a corresponding meaning.
In the Contract:
a) the law governing the Contract, its interpretation and any agreement to arbitrate
is the law of the State or Territory stated in Item 5, or if the State or Territory is
not stated, the law of the State or Territory where the Services are to be carried
out;
b) the clause and subclause headings in these General Conditions of Contract shall
not form part of, nor be used in, the interpretation of the Contract;
c) words in the singular include the plural and words in the plural include the
singular, according to the requirements of the context. Words importing a gender
include every gender;
d) if the time for giving any notice, making any payment or doing any other act
required or permitted by the Contract, falls on a Saturday, Sunday or Statutory
or Public Holiday, then the time for giving the notice, making the payment or
doing the other act shall be deemed to be on the day next following which is not
a Saturday, Sunday or Statutory or Public Holiday; and
e) unless otherwise provided, prices are in Australian dollars and payments shall be
made in that currency at the place in Item 19.
2. Nature of Contract
The Contractor shall perform the Services in accordance with the Contract.
The Contract is constituted by those documents listed in Item 6.
The Contractor shall commence the performance of the Services on the
commencement date and shall complete the responsibilities and obligations of the
Contractor by the completion date.
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3. Responsibilities and Obligations of the Contractor
The Contractor shall:
a) perform the Services in a skilful, competent, conscientious, expeditious and
workmanlike manner to the Principal's satisfaction and in accordance with the
Contract;
b) remain fully responsible for the Services carried out by the Contractor
notwithstanding any review or acceptance of those Services by the Principal;
c) do all things necessary and necessarily incidental for the proper performance of
the Contractor’s obligations under the Contract;
d) unless stated otherwise in the Contract, supply all labour, plant, equipment,
materials, power, lighting, safety equipment and other requirements necessary to
complete the Services in accordance with the Contract;
e) maintain all plant and equipment provided or used in the performance of the
Services in a safe and proper working condition and use in accordance with the
manufacturer's instructions;
f) where stated in Item 23 and within the time and in the form stated in Item 23
submit to the Principal a program for carrying out the Services;
g) comply with all directions of the Principal given pursuant to a provision of the
Contract;
h) employ staff with appropriate qualifications and experience to carry out the
Services;
i) engage and retain subcontractors identified in the Contract;
j) ensure that the Key Personnel stated in Item 24 (or replacement Key Personnel
approved under subclause 8.3) are used by the Contractor to carry out the work
stated in Item 24;
k) comply with all legislative requirements in carrying out the Services;
l) perform the Services in a manner that shall not contravene, nor cause the
Principal to contravene, the Operating Licence;
m) when on the site and when using the Principal’s facilities (in accordance with the
level of risk stated in Item 25), comply with all of the Principal’s directions,
procedures and policies relating to occupational health, safety and security
requirements, which are available on request.
n) take due care of the Principal’s documents, samples, patterns, moulds and other
material provided to the Contractor in connection with carrying out the Services;
o) promptly give written notice to the Principal if and to the extent the Contractor
becomes aware that any documents or other information provided by the Principal
are ambiguous or inaccurate or are otherwise insufficient to enable the Contractor
to carry out the Services;
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p) as soon as practicable after becoming aware of any matter or circumstance which
may adversely affect or has adversely affected the scope, timing or carrying out of
the Services, give written notice to the Principal detailing the matter or
circumstance and its anticipated effect on the Services;
q) notify the Principal immediately the existence or likelihood of a conflict of interest
becomes apparent to the Contractor and cooperate with the Principal to resolve
such conflict of interest;
r) except as required by law, treat as confidential all information disclosed or made
known to the Contractor, Personnel or subcontractors by the Principal pursuant to
the Contract; and
s) except as provided in Item 9, bear the cost of all fees and charges required to
comply with legislative requirements incurred in connection with carrying out the
Services;
4. Responsibilities and Obligations of the Principal
The Principal shall:
a) pay the Contractor in accordance with the Contract;
b) when and as required under the Contract, provide the Contractor with relevant
documents, samples, patterns, moulds and other information in the possession or
control of the Principal sufficient to enable the Contractor to carry out the
Services;
c) give or cause to be given to the Contractor in writing timely directions,
instructions, decisions and information sufficient to define the Services required
and facilitate the provision of the Services by the Contractor;
d) provide the Contractor with such access to sites of the Principal as is reasonably
necessary for the Contractor to carry out the Services; and
e) except as required by law and subject to the Contract, treat as confidential
information so designated in writing by the Contractor.
5. Supply of Documents
Documents and all reproductions supplied to the Contractor by the Principal shall
remain the property of the Principal and shall be returned to the Principal upon
demand.
The Contractor shall supply to the Principal, free of charge and prior to the
commencement of the Services, such documents as the Principal deems necessary to
assess all aspects and details of the Services.
All documents supplied by the Contractor to the Principal under the Contract shall
become the property of the Principal and may be used, adapted or reproduced in a
material form and in two or three dimensional form at the
Principal’s discretion for any purpose related to the Services carried out under the
Contract.
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6. Formal Instrument of Agreement
The written acceptance by the Principal of the Consultant’s Bid, together with all
documents or parts of documents referred to therein or to which reference may
properly be made to ascertain the rights and obligations of the parties, shall evidence
the Contract and the Consultant shall not be entitled to rely upon or enforce any
representation made by or on behalf of the Principal prior to the date of acceptance of
the bid other than those contained in the Contract. If a formal instrument of
agreement is required by the documents evidencing the Contract, the Principal shall
prepare such an instrument and send it to the Consultant within 28 days of the date
of acceptance. Having satisfied itself as to the correctness of the instrument of
agreement, the Consultant shall execute and return it to the Principal within 14 days
of receipt, or such other time as the Principal may approve in writing.
Notwithstanding any other provision of the Contract, the Consultant shall not be
entitled to payment until such copies are properly executed and returned by the
Consultant.
7. Service of Notices
A notice shall be deemed to have been given when it is received by the person to
whom it is addressed or is delivered to the address of that person stated in the
Contract or last communicated in writing by that person to the person giving the
notice, whichever is the earlier.
The Principal and the Contractor shall each notify the other of a change of address.
8. Principals Representative and Contractor’s Representative and
Personnel
8.1. Principal’s Representative
The person named in Item 10, or such person as the Principal substitutes by written
notice to the Contractor, shall act as the Principal’s representative to exercise
functions of the Principal for the purposes of the Contract.
8.2. Contractor’s Representative
The person named in Item 11, or such person as the Contractor substitutes by
written notice to the Principal, shall act as the Contractor’s representative under the
Contract and any reasonable direction given by the Principal to the Contractor’s
representative shall be binding. The Contractor shall not substitute the Contractor’s
representative, without the prior consent of the Principal, which consent shall not be
unreasonably withheld.
8.3. Contractor’s Personnel
If the Principal reasonably considers any of the Personnel performing the Services are
acting dishonestly, in an unprofessional manner or negligently or are otherwise not
suitable to perform the Services, the Principal may direct the Contractor to replace
those Personnel and the Contractor shall comply at its own cost.
Where the Contractor proposes to replace any of the Personnel for any reason, or is
directed by the Principal to replace any of the Personnel, the Contractor shall before
replacing the Personnel, promptly give to the Principal written notice of the proposed
replacement Personnel. If the Principal informs the Contractor that any of the
proposed replacement Personnel are unacceptable, then the Contractor and the
6
Principal shall meet as soon as possible and negotiate, in good faith, to agree
acceptable replacement Personnel.
9. Assignment and Engagement of Subcontractors
Neither party shall, without the prior written approval of the other and except on such
reasonable terms and conditions as are determined in writing by the other, assign the
Contract or any payment or any other right, benefit or interest thereunder.
The Contractor shall not subcontract any part of the Services without the prior written
approval of the Principal, which approval shall not be unreasonably withheld. Any
such subcontracting shall not relieve the Contractor from any liability or obligation
under the Contract. Approval may be conditional upon any subcontract including: a
provision that the subcontract shall exclude part 1F of the Civil Liability Act (WA). The
Contractor shall if requested by the Principal provide copies of the proposed
subcontract documents without prices.
10. Quality Assurance
The Contractor shall maintain any quality assurance system specified in the Contract
or as otherwise agreed in writing by the Principal.
11. Non-Conforming or Defective Services
The Principal may at any time inspect any Services being carried out or which have
been carried out by the Contractor as part of the Contract. If at any time during the
carrying out of the Services or after the completion date of the Contract, the Principal
finds that the Services or a portion the Services is defective or does not conform to
the Contract, the Principal may:
a) accept the defective or non-conforming Services by varying the Services in
accordance with clause 14, taking into account any change in value of the Services
to the Principal as a consequence of the defect or non-conformity; or
b) require the Contractor to remedy the defective or non-conforming Services.
Inspection of the Services by the Principal shall not relieve the Contractor from its
obligation to perform the Services in accordance with the Contract.
Upon receipt of a written request from the Principal to rectify or re-perform Services
that are found to be defective or not in accordance with the Contract, the Contractor
shall, at no cost to the Principal, perform that part of the Services again, rectifying
any defects and correcting any failure until the Services comply with the Contract.
Rectification of defects shall include any costs of removal, re-installation, freight and
insurance of any defective goods supplied under the Contract.
If the Contractor, upon receipt of a written request from the Principal to rectify or re-
perform Services that are found to be defective or not in accordance with the
Contract, does not promptly and with due diligence proceed to carry out such
rectification or re-performance to the satisfaction of the Principal, the Principal may
have such work undertaken by others but without prejudice to any other rights and
remedies that the Principal may have.
The Principal may recover from the Contractor any costs in having work undertaken
by others pursuant to this clause 11 as a debt due and payable on demand.
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12. Liability
12.1. Limitation of Liability
Notwithstanding any other provision of the Contract:
a) the Principal’s total liability to the Contractor for all claims (other than claims
for personal injury or death) arising out of, or in connection with the Contract
(other than the obligation to pay under subclause 4 a)) is limited to the
greater of:
i) the amount stated in Item 12 a); or
ii) any amounts the Principal is able to recover under any insurances taken
out under the Contract;
b) the Contractor’s total liability to the Principal for all claims (other than claims
for personal injury or death) arising out of or in connection with the Contract
is limited to the greater of:
i) the amount stated in Item 12 b); or
ii) any amounts the Contractor is able to recover under any insurances
taken out under the Contract, or which it would have been able to
recover if the insurances had been taken out, or which it would have
been able to recover under the insurances, in either case, but for any
act, failure or omission by the Contractor; and
c) neither party is liable to the other for any indirect, consequential, special,
contingent or penal loss or damage, including but not limited to loss of use,
loss of profit, loss of revenue or cash flow, loss of reputation, loss of
opportunity or loss of anticipated savings.
Nothing in this clause shall be read or applied so as to purport to exclude, restrict or
modify, or have the effect of excluding, restricting or modifying the application in
relation to the supply of any Services pursuant to the Contract of all or any of the
provisions of the Trade Practices Act 1974 as amended and in force from time to time
or any relevant State Act or Territory Act which by law cannot be excluded, restricted
or modified.
12.2. Indemnity by Contractor
Subject to subclause 12.1, and except in circumstances constituting an indemnity
under subsection 175AA(7) of the Workers’ Compensation and Injury Management
Act 1981 (WA), the Contractor shall indemnify the Principal against:
a) loss of or damage to property of the Principal; and
b) claims by any person against the Principal in respect of personal injury or
death or loss of or damage to any other property;
arising out of or in consequence of carrying out the Services by the Contractor but
the Contractor’s liability to indemnify the Principal shall be reduced proportionally to
the extent that the act or omission of the Principal or the employees, agents or other
8
contractors of the Principal contributed to the loss, damage, death or injury.. The
indemnity under this subclause 12.2 shall not apply to the extent that the liability of
the Contractor is limited by another provision of the Contract or exclude any other
right of the Principal to be indemnified by the Contractor.
13. Insurance
13.1. Public Liability Insurance
The Contractor shall maintain a public liability insurance policy for an amount in
respect of any one claim or series of claims arising from the one original cause of not
less than the sum stated in Item 13. The policy shall be maintained until the
Contractor completes carrying out the Services. The policy shall cover the Contractor
in respect of liability to the Principal and third parties in respect of any claim for loss
of or damage to property or death or injury to any person arising from the acts or
omissions of the Contractor, its employees and subcontractors in the course of
carrying out the Services and shall extend to indemnify the Principal as one of the
class of persons constituting the insured but not in respect of liability to the extent
that the loss, damage, death or injury is due to or results from an act or omission of
the Principal.
13.2. Insurance of Employees
Before the Contractor commences carrying out the Services, the Contractor shall
insure against statutory and common law liability for death of or injury to persons
employed by the Contractor. The insurance cover shall be maintained until the
Contractor completes carrying out the Services.
Where permitted by law, the insurance policy or policies shall be extended to provide
indemnity for the Principal’s statutory liability to the Contractor’s employees.
The Contractor shall ensure that all subcontractors have similarly insured their
employees.
However, if the Contractor:
a) is a natural person and carries out Services for the Principal pursuant to this
Contract, the natural person shall be covered under the Principal’s workers’
compensation insurance against liability for death or injury arising out of or
in connection with the performance of the Services; or
b) has a working director (without workers’ compensation insurance coverage)
and that working director carries out Services for the Principal pursuant to
this Contract, the working director shall be covered under the Principal’s
workers’ compensation insurance against liability for death or injury arising
out of or in connection with the carrying out of the Services.
Further to 13.2 a) and 13.2 b) above, if requested by the Principal and
notwithstanding termination or completion of the Contract, the Contractor shall
promptly provide all information requested by the Principal which the Principal
requires in order for the Principal’s insurer to determine the premiums for the
Principal’s workers’ compensation insurance coverage, including an estimate of the
value of the Services carried out for the Principal as a percentage of its total work for
the relevant period (which information shall not be used for any other purpose and
shall be kept confidential).
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13.3. Motor Vehicle Third Party Insurance
Before the Contractor commences carrying out the Services, the Contractor shall
effect and maintain for the duration of the Contract, a motor vehicle third party
liability policy to cover damage to motor vehicles and other property for an amount in
respect of any one occurrence of not less than the sum in Item 14.
13.4. Professional Indemnity Insurance
Before the Contractor commences carrying out the Services, the Contractor shall
effect a professional indemnity insurance policy (if applicable at Item 15 a)) for the
Services covered in the Contract with a total aggregate cover of not less than the
sum stated in Item 15 a). The policy shall include provisions for one automatic
reinstatement of the sum insured and for loss of documents. The policy and such
level of cover shall be maintained until the Contractor completes carrying out the
Services and thereafter for the period stated in Item 15 b).
13.5. Proof of Insurance
Within 7 days of the commencement date and whenever subsequently requested in
writing by the Principal, the Contractor shall provide the Principal with satisfactory
evidence to demonstrate that the insurances referred to above have been effected
and are being maintained.
Insurance shall not limit liabilities or obligations under other provisions of the
Contract.
13.6. Notification of Death or Injury
The Contractor shall notify the Principal:
(a) of any injury to or death of any of its Personnel or other person whilst
carrying out the Services, forthwith upon its occurrence; and
(b) any other circumstances or incidents arising or occurring, which may give
rise to a claim against the Principal, within 48 hours of its occurrence
14. Directions and Variations
14.1. Directions by the Principal
Except where the Contract otherwise provides, a direction may be given orally but
the Principal shall as soon as practicable confirm it in writing.
If the Contractor in writing requests the Principal to confirm an oral direction, the
Contractor shall not be bound to comply with the direction until the Principal confirms
it in writing.
14.2. Variations
The Principal may vary the source, form, quality or quantity of the Services or any
part of the Services that the Principal deems necessary provided that the variation is
within the general scope of the Services. The Contractor shall not vary the Services
without a prior written instruction from the Principal.
All variations shall be valued in accordance with the Contract rates or prices, where
applicable. If the rates or prices in the Contract are not applicable to the variation,
then the Principal and the Contractor shall agree reasonable rates or prices.
10
15. Delay and Extension of Time
The Contractor shall proceed with the Services under the Contract with due expedition
and without delay.
When it becomes evident to a party that anything - including an act or omission of the
Principal or an employee, consultant, other contractor, or agent of the Principal - may
delay the carrying out of the Services, that party shall promptly notify the other party
in writing with details of the possible delay and the cause.
If the Contractor is or will be delayed in carrying out the Services by a cause beyond
the reasonable control of the Contractor, the time for carrying out the Services shall
be extended by the extent of the delay, if the Contractor gives notice in writing to the
Principal within 7 days of the cause of the delay arising. If the Contractor fails to give
such notice within 7 days of the cause of the delay arising it shall not be entitled to an
extension of time.
If the cause of the delay is an act or omission of the Principal or an employee,
consultant, other contractor or agent of the Principal, the Principal shall pay the
Contractor such extra costs as are necessarily incurred by the Contractor by reason of
the delay.
The Principal may, at any time, by written notice to the Contractor extend the time for
carrying out the Services for any reason.
The Principal may direct the Contractor in what order and at what time the Services
shall be performed. If the Contractor can reasonably comply with the direction, the
Contractor shall do so. If the Contractor cannot reasonably comply with the direction
the Contractor shall so notify the Principal in writing, giving reasons. If compliance
with the direction causes the Contractor to incur more or less cost than otherwise
would have been incurred had the Contractor not been given the direction, the
difference shall be valued pursuant to subclause 14.2 as though the direction was a
direction to vary the Services.
Nothing in this clause 15 shall:
a) oblige the Principal to pay extra costs for delay or disruption which have already
been included in the value of a variation or any other payment under the Contract;
or
b) limit the Principal’s liability for damages for breach of contract.
16. Suspension
If the Principal considers that the suspension (other than under subclause 21.2) of the
whole or part of the Services is necessary, the Principal shall direct the Contractor to
suspend the performance of the whole or part of the Services for such time as the
Principal sees fit.
The Contractor shall not resume the provision of that portion of the Services that have
been suspended until directed to do so by the Principal.
The Principal shall pay the Contractor for all Services carried out to the date of
suspension together with any costs or expenses reasonably incurred by the Contractor
by reason of the suspension.
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17. Payment
17.1. Claims for Payment
At the times stated in Item 16, the Contractor shall submit written claims for
payment of fees and reimbursement of expenses and disbursements stated in Item
18 accompanied by such information and documentation as is reasonably required by
the Principal to verify the claim.
17.2. Payment
The Contractor’s payment shall be determined in accordance with Item 17.
17.3. Timesheets
Where Item 17 provides for the Contractor’s payment to be determined on a time
charge or similar basis, the Contractor:
a) shall maintain a “timesheet system”, recording hours worked by each of the
Personnel in performing the Services; and
b) shall provide summary information (in a format approved by the Principal) of
hours worked by each of the Contractor’s Personnel, with the Contractor’s
claims for payment.
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17.4. Payment of Expenses and Disbursements
The Principal shall bear the expenses and disbursements stated in Item 18 subject to
the Contractor obtaining the prior written approval of the Principal. Except as provided
elsewhere in the Contract, the Contractor shall bear all other expenses and
disbursements incurred by the Contractor in performing the Services.
17.5. Time and Place for Payment
On receipt of a claim for payment, the Principal shall assess the claim and within the
times and at the place stated in Item 19 the Principal shall pay the Contractor the
amount due and payable. If the Principal does not pay the amount of the claim the
Principal shall, either with the payment or not later than the time for payment,
provide the Contractor with a written statement of the reason for any difference
between the amount claimed and the amount paid or to be paid.
Payment of moneys shall not be evidence of the value of work or an admission of
liability or evidence that the Services have been executed satisfactorily but shall be a
payment on account only.
17.6. Interest on Overdue Payments
If any moneys due and payable to either party remain unpaid after the date upon
which, or the expiration of the period within which, they should have been paid, then
interest shall be payable thereon at the rate stated in Item 20 from but excluding the
date upon, which or the expiration of the period within which they should have been
paid to and including the date upon which the moneys are paid.
17.7. Right to Deduct Moneys from Payments
The Principal may elect that moneys due and owing otherwise than in connection with
the subject matter of the Contract also be due to the Principal pursuant to the
Contract.
17.8. Goods and Services Tax
The parties confirm that they are both registered for GST pursuant to the GST Act and
that should either of them cease to be so registered it shall inform the other at the
earliest opportunity.
Unless otherwise agreed with the Principal in relation to the Contract, the Contractor
shall not issue tax invoices by way of claims for payment and hereby agrees that the
Principal shall issue Recipient Created Tax Invoices setting out all relevant details
required under the GST Act and related rulings, including the amount to be paid on
account of GST for all payments made under the Contract.
If the Contractor fails to provide to the Principal an Australian Business Number, the
Principal shall deduct “Pay As You Go” tax, at the top marginal rate from any payment
due to the Contractor under the Contract and remit the amount of that tax to the
Australian Taxation Office for the benefit of the Contractor.
18. Parking
The Principal shall not provide parking facilities for the Contractor or any of the
Contractor’s Personnel at the Principal’s premises.
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19. Working Hours
Unless stated otherwise in the Contract, the Contractor shall not work on any site
outside the working hours stated in Item 21 without the prior written consent of the
Principal.
20. Clearance to Work Procedure
The Contractor shall when specified in Item 22 comply with the requirements of the
Principal’s Clearance to Work Procedure in the performance of the Contract.
21. Termination, Default, Suspensions and Frustration
21.1. Termination Other than Due to Default
The Contract may be terminated at any time by mutual agreement or by the Principal
giving reasonable prior written notice to the Contractor. If the Contract is terminated
pursuant to this subclause 21.1, the Principal shall pay the Contractor a fair and
reasonable fee for the Services carried out up to and including the date of termination
together with payment of any costs and expenses reasonably incurred by the
Contractor to that date.
If due to a cause or causes beyond the reasonable control of both parties, the carrying
out of the Services is not possible within a reasonable time then, unless the parties
otherwise agree, the Contract shall thereupon be deemed to be frustrated and
subclause 21.4 shall apply.
21.2. Termination due to Default by Either Party
If either party:
(a) commits a substantial breach of the Contract including, but not limited to,
failure to:
i) make a payment due and payable pursuant to the Contract;
ii) provide evidence of insurance;
iii) comply with a reasonable direction of the Principal;
iv) use the materials or standards of work required by the Contract;
v) maintain any quality assurance system required under the Contract;
.
vi) proceed in accordance with a program without reasonable cause or the
Principal’s approval; or
vii) proceed with due expedition and without delay; then
b) the other party may give to the party who committed the breach, a written
notice to show cause which shall:
i) state it is a notice given under subclause 21.2 of these General
Conditions of Contract;
ii) specify the alleged breach with reasonable details;
14
iii) require the party who committed the breach to show cause in writing why
the party giving the notice should not exercise a right referred in this
subclause 21.2; and
iv) specify the date by which the party who committed the breach shall show
cause (which date shall be not less than 7 days after the notice is given
to that party).
If by the time specified in a notice given under this subclause 21.2, the party who
committed the breach fails to show reasonable cause the other party may, by further
written notice, terminate the Contract or suspend the party’s obligations to perform
the Contract.
If the Contract is terminated pursuant to this subclause 21.2, the rights and liabilities
of the parties shall be the same as they would have been at common law had the
defaulting party repudiated the Contract and the other party had elected to treat the
Contract as at an end and recover damages.
If a party suspends performance of the Contract pursuant to this subclause 21.2, that
party shall lift the suspension if the other party remedies the breach. If the party in
default fails, within a reasonable time, to remedy the breach the other party may, by
further written notice, terminate the Contract.
A party who suspends performance of the Contract pursuant to this subclause 21.2
shall be entitled to recover any damages incurred by reason of the suspension.
21.3. Insolvency
If:
a) a party informs the other party in writing or creditors generally that the party
is insolvent or is financially unable to proceed with the Contract;
b) execution is levied against a party by a creditor;
c) a party is an individual person or a partnership including an individual
person, and if that person:
i) commits an act of bankruptcy;
ii) has a bankruptcy petition presented against him or her or presents his or
her own petition;
iii) is made bankrupt;
iv) makes a proposal for a scheme of arrangement or a composition; or
v) has a deed of assignment or deed of arrangement made, accepts a
composition, is required to present a debtor’s petition, or has a
sequestration order made, under Part X of the Bankruptcy Act 1966
(Cth); or
d) in relation to a party being a corporation:
15
i) notice is given of a meeting of creditors with a view to the corporation
entering a deed of company arrangement;
ii) the party enters a deed of company arrangement with creditors;
iii) a controller or administrator is appointed;
iv) an application is made to a court for the winding-up of the party and not
stayed within 14 days;
v) a winding-up order is made in respect of the party;
vi) resolves by special resolution that the party be wound up voluntarily
(other than for a members’ voluntary winding-up); or
vii) a mortgagee of any property of the party takes possession of that
property;
then, the other party may, notwithstanding that there has been no breach of the
Contract and in addition to any other rights, terminate the Contract without giving
prior notice.
21.4. Frustration
If pursuant to subclause 21.1 or under the law governing the Contract, the Contract is
frustrated, the Principal shall pay the Contractor:
a) for Services executed up to the date of frustration, the amount not then paid
but which would have been payable if the Contract had not been frustrated;
b) costs reasonably incurred by the Contractor to that date in the expectation of
carrying out the Services and not included in any prior payment by the
Principal; and
the reasonable cost of return to their place of recruitment of the Contractor’s
employees and subcontractors engaged in carrying out the Services at the date
of frustration.
21.5. Preservation of Other Rights
If a party breaches (including repudiates) the Contract, nothing in this subclause 21.5
shall prejudice the right of the other party to recover damages or exercise any other
right or remedy.
If the Contract is terminated pursuant to subclause 21.2 or 21.3 the parties’
remedies, rights and liabilities shall be the same as they would have been under the
law governing the Contract had the defaulting party repudiated the Contract and the
other party elected to treat the Contract as at an end and recover damages.
22. Dispute Resolution
22.1. Notice of dispute
If a difference or dispute (together called a ‘dispute’) between the parties arises in
connection with the subject matter of the Contract then either party shall, by hand or
by registered post, give the other and the Superintendent a written notice of dispute
16
adequately identifying and providing details of the dispute. A Contractor’s notice of
dispute to the Principal shall be delivered to the address stated in Item 3.
Notwithstanding the existence of a dispute, the parties shall, subject to clause 21 and
subclause 22.5, continue to perform the Contract.
22.2. Conference
Within 14 days after receiving a notice of dispute, the parties shall confer at least
once to resolve the dispute or to agree on methods of doing so, including but not
limited to mediation, conciliation, binding expert determination and arbitration, of the
whole or any part of the dispute. At every such conference each party shall be
represented by a person having authority to agree to such resolution or methods. All
aspects of every such conference except the fact of occurrence shall be privileged.
If the dispute has not been resolved nor a method of resolution been agreed within 56
days of service of the notice of dispute, that dispute shall be dealt with in accordance
with subclause 22.3.
22.3. Elevation clause
If the parties are unable to resolve the dispute or agree a method of resolution in
accordance with subclause 22.2:
a) the dispute shall be referred to the Business Services Manager, or a duly
authorised representative, of the Principal and the Chief Executive
Officer/Managing Director, or a duly authorised representative, of the
Contractor to resolve the dispute or agree a method of resolution;
b) the individuals, referred to in subclause 22.3 a), shall meet within 14 days
after referral of the dispute in an effort to resolve the dispute or agree a
method of resolution;
c) if the individuals referred to in subclause 22.3 b) agree at that meeting on
the method of resolution, they shall also nominate a timeframe for the
commencement and conclusion of the method of resolution; and
c) if the individuals referred to in subclause 22.3 b) are unable to resolve the
dispute or agree a method of resolution, each within 14 days of the dispute
being so referred, either party may give notice to the other stating that the
parties have been unable to resolve the dispute or agree a method of
resolution.
22.4. Instituting proceedings
Neither party shall proceed to resolve a dispute by instituting court proceedings until
issuing to, or receiving from, the other party, a notice in accordance with subclause
22.3 d).
22.5. Summary Relief
Nothing herein shall prejudice the right of a party to institute proceedings to enforce
payment due under the Contract or to seek injunctive or urgent declaratory relief.
23. Severability
If any provision of the Contract is illegal, void, invalid or unenforceable for any
reason, all other provisions which are self-sustaining and capable of separate
enforcement shall, to the maximum extent permitted by law, be and continue to be,
valid and enforceable.
17
24. Civil Liability Act 2002
Part 1F of the Civil Liability Act (WA) 2002 is excluded from application to this
Contract.
Annexure Part A
to the Water Corporation General Conditions of Contract for Services Item
1 The Services are as
described in:
(clause 1)
2 a) The Principal is:
(clause 1)
Water Corporation
ABN: 28 003 434 917
b) The Principal’s
address is:
John Tonkin Water Centre
629 Newcastle Street
Leederville Western Australia 6007
3 Principal's address for
notice of dispute only
(subclause 22.1)
Manager Procurement
Water Corporation
John Tonkin Water Centre
629 Newcastle Street
Leederville Western Australia 6007
4 a) The Contractor is:
(clause 1)
ABN:
b) The Contractor's
address is:
(clause 1a) p.2)
5 The law applicable is that
of the State of:
(clause 1)
6 The Contract documents
are:
(clause 2 and clause 6)
7 a) Commencement date:
(clause 1 a))
b) Commencement date:
(clause 1 b))
.......................... days from the date of
the notice of acceptance
8 a) Completion date:
(clause 1 a))
b) Completion date:
(clause 1 b))
.......................... days/ weeks from the
date of the notice of acceptance
9 Fees and charges to
satisfy legislative
requirements payable by
the Principal
(subclause 3 s))
10 The Principal’s
representative is:
(subclause 8.1)
Tel: Fax:
11 The Contractor's
representative is:
(subclause 8.2)
Tel: Fax:
12 a) The Principal’s liability
is limited as follows:
(subclause 12.1)
$100,000
b) The Contractor's
liability is limited as
follows:
(subclause 12.1)
$100,000
13 The amount of public
liability insurance shall not
be less than:
(subclause 13.1)
If nothing stated, $20,000,000
14 The amount of Motor
vehicle third party
insurance:
(subclause 13.3)
$20,000,000
15 a) The amount of
professional indemnity
insurance shall not be
less than:
(subclause 13.4)
(If nothing stated, $1,000,000)
b) The period for which
professional indemnity
insurance shall be
maintained is:
(subclause 13.4)
(If nothing stated, until completion of the
Services)
16 Claims for payment shall
be made:
(subclause 17.1)
Monthly on the commencement date if the
completion date is 3 months or more from
the commencement date; otherwise on
completion of the Services to the Principal’s
satisfaction.
17 The Contractor's
payments shall be
determined as follows:
(subclause 17.2 and 17.3)
18 The expenses and
disbursements to be
reimbursed to the
Contractor shall be:
(subclause 17.4)
Payable at cost, as follows:
19 The times and place for
payment shall be:
(subclause 17.5)
No later than
(a)……..days after the date of submission of
a claim for payment
(If nothing stated, 28 days)
(b) Place of Payment
(If nothing stated, the Principal’s address)
20 The rate of interest on
overdue payments is:
(subclause 17.6)
(If nothing stated 6%)
21 Working hours on site
(clause 19)
22 Compliance with clearance to
work procedure
(clause 20)
Yes/No
23 Program
(subclause 3 f))
Time for Lodgement:
Form:
24 Key Personnel
(subclause 3 j))
Key Personnel:
Work to be performed:
25 Occupational Safety and
Health
subclause 3 m)
Level of Risk is low/significant
