Part A – Terms and Conditions
1. Effect of term
This Contract comes into full force and effect immediately upon the earlier of the Contractor:
(a) acknowledging receipt of, or expressly or impliedly accepting, this Contract, whether in writing or via email; and
(b) suppling or carrying out any aspect of the Activities, or performing any obligation under this Contract.
2. Activities and general obligations
2. 1 Performance of the Activities
(a) The Contractor must (and must ensure that all Personnel) supply and carry out the Activities:
(i) in a proper and workmanlike manner, and with due skill and care, to the satisfaction of Wyllie;
(ii) in accordance with:
(A) this Contract and all Laws;
(B) all reasonable directions of Wyllie including compliance with Wyllie policies; and
(C) the requirements, policies, rules, plans, systems and procedures in connection with the Activities; and
(iii) with due expedition and without delay and, in any event, in accordance with any program or timeframes set out in this Contract (including so as to complete the Activities by no later than the date for completion set out in this Contract).
(b) Without limiting and in addition to clause 2.1(a), the Contractor must (and must ensure that all Personnel):
(i) take all measure and provide all things necessary to protect people;
(ii) take all measures and provide all things necessary to protect property;
(iii) except to the extent this Contract expressly states otherwise, obtain all Approvals in connection with theActivities and ensure that all such Approvals are in full force and effect at all times;
(iv) promptly make good any damage or loss to property caused or contributed to by the Contractor or the Personnel and pay any compensation required by Law; and
(v) immediately notify Wyllie in writing of any act, omission, fact, event or circumstance which might have an adverse impact on the Contractor’s ability to supply or carry out the Activities (Issue) and take all reasonable steps to overcome, rectify and/or remedy the Issue (including the effects of the
2.2 Warranties
(a) The Contractor warrants:
it will supply, carry out and complete the Activities in accordance with this Contract;
(b) the Activities and all Materials will be fit for their Intended Purpose;
(c) it has, and the Personnel have:
(i) obtained and examined all information and documentation necessary to supply or complete the Activities and otherwise comply with this Contract;
(ii) made all necessary enquiries of Wyllie to ascertain the requirements and objectives for the provision of the Activities; and
(iii) satisfied itself that the Contract Price contains all necessary allowances;
(d) has (and will have) no existing or anticipated conflict of interest in relation to this Contract and has not made (and will not make) any commitment in conflict with the Relevant Matters;
(e) if an actual or perceived conflict of interest occurs, it will immediately notify Wyllie and enter into good faith discussions in relation to whether the Contractor is able to continue to supply or carry out the Activities;
(f) it has entered into this Contract without relying on any representation by Wyllie or any person purporting to represent Wyllie; and
(g) it is a GST registered entity.
2.3 Defects
(a) Wyllie may direct the Contractor to rectify any Defect.
(b) The Contractor must, within the time stipulated by Wyllie’s direction under clause 2.3(a) (or, if no time is specified, as soon as reasonably possible), rectify the Defect.
(c) The Contractor must carry out any rectification works at times, and in a manner, which cause as little inconvenience or disruption to Wyllie, occupants or users of the relevant Activities or the Site as is reasonably possible.
(d) If the Contractor does not comply with this clause 2.3, Wyllie may:
(i) perform or have others perform the rectification works; and
(ii) recover the loss, costs and expenses Wyllie suffers or incurs as a result of the Defect as a debt due and immediately payable from the Contractor.
(e) Nothing in this clause 2.3 limits any of Wyllie’s rights or entitlements, whether under this Contract or otherwise.
2.4 Indemnity
To the maximum extent permitted by law, the Contractor holds harmless and must indemnify, and must keep indemnified, Wyllie against all Claims, liabilities, costs, loss, damage and expenses (including legal fees on a full indemnity basis) which Wyllie suffers or incurs arising from or in connection with:
(a) any illness, personal injury or death or any property damage (or loss of use of property) caused or contributed to by the Contractor and/or the Personnel or otherwise arising from or in connection with the Activities; or
(b) any wrongful, unlawful, reckless, wilful or negligent act or omission of the Contractor and/or the Personnel, including any default or breach of this Contract.
2.5 Title and Risk
The Contractor bears the risk of loss and damage for all goods including materials and/ or works until Wyllie’s final acceptance of the goods including materials, installation and or works (as appropriate).
3. Access to the Site
3.1 Access
(a) Not later than the date (if any) stated in the Completed Purchase Order, but subject to:
(i) the Contractor having provided the certificates of currency under clause 6.2; and
(ii) access granted to the Site by Wyllie or occupier of the Site, Wyllie will use its reasonable endeavours to grant non- exclusive access to the Site to the Contractor for the purpose of allowing the Contractor to supply or carry out the Activities. Any delay in giving, or failure to give, the Contractor access to the Site will not be a breach of this Contract.
(b) The Contractor must:
(i) only access the Site during the hours and on the days (if any) provided for in this Contract or as notified in writing by Wyllie; and
(ii) comply with the restrictions, conditions and other requirements referred to (or included in) this Contract (or as notified to the Contractor by Wyllie at any other time) in relation to accessing the Site.
3.2 Coordination
(a) The Contractor acknowledges that Wyllie may be carrying out activities and operations on or around the Site (Others).
(b) The Contractor must not interfere with or disrupt, and must coordinate the Activities with, the work, operations and activities being carried out by Others.
4. Documents and Intellectual Property Rights
4.1 Supply of documents by the Contractor
(a) The Contractor must promptly give Wyllie two copies of each of the documents (including any Materials) required by this Contract to be supplied by the Contractor.
(b) The Contractor acknowledges and agrees that:
(i) Wyllie is not required to check any documents, including for compliance with this Contract; and
(ii) any acknowledgement, direction, instruction, notice, comment or approval (or any failure to do any of those things) by Wyllie will not limit or alter the Contractor’s obligations or liabilities under this Contract.
4.2 Supply of documents
The Contractor acknowledges and agrees that:
(a) any information or documentation (and any Intellectual Property Rights in any information or documentation) provided by or on behalf of Wyllie remains (as between Wyllie and the Contractor) the property of Wyllie; and
(b) upon request by Wyllie, it must (and must ensure that the Personnel) immediately return and/or permanently delete or destroy all copies of all information or documentation (including Confidential Information).
4.3 Intellectual Property Rights
The Contractor:
(a) grants Wyllie a perpetual, irrevocable, world-wide, transferable and royalty-free licence to use, adapt and modify (and sub-licence to others to use, adapt or modify) all Intellectual Property Rights in the Activities and the Materials for any purpose; and
(b) warrants that it (and the Personnel) will not infringe any Intellectual Property Rights owned or licensed to Wyllie.
4.4 Confidentiality
The Contractor must (and must ensure that the Personnel) at all times not disclose, or make any statement or communication in relation to, any Confidential Information to any third party.
5. Administration and Personnel Relationship
5.1 Relationship
The Contractor acknowledges and agrees:
(a) Wyllie may engage a representative as an independent contractor and the person in charge of managing the Site (including contractor and visitor access to the Site) and the Activities (including activities of other contractors);
(b) Wyllie’s representative will give directions and at all times carry out its functions in support of this Contract.
5.2 Assignment and novation
(a) The Contractor must not assign, novate or otherwise deal with this Contract, or any right, benefit or interest under this Contract, without the prior written consent of Wyllie.
(b) Wyllie may at any time assign or novate this Contract, or any right, benefit or interest under this Contract, and the Contractor must promptly, upon request by Wyllie, execute all documents required by Wyllie to give effect to any such assignment or novation.
5.3 Subcontracting
(a) The Contractor must not engage any subcontractor in connection with the Activities without obtaining the prior written consent of Wyllie.
(b) The use of Personnel, or any approval to subcontract, will not relieve the Contractor from any liability, obligation or warranty under this Contract.
5.4 Removal of persons
Wyllie may direct the Contractor to remove from the Site (or from the performance of the Activities) any person whom Wyllie considers to be disruptive, incompetent, negligent, guilty of misconduct or who is performing the Activities in an unsafe or unsatisfactory manner.
6. Insurance
6.1 Policies
The Contractor must effect and maintain the Insurance Policies (in the amounts and for the periods stated in this Contract) upon terms and with an insurer approved by Wyllie.
6.2 Evidence of insurances
(a) Before commencing any Activities and whenever otherwise requested by Wyllie, the Contractor must promptly provide to Wyllie avalidcertificateofcurrencyforeach Insurance Policy.
(b) If the Contractor fails to provide such certificates of currencyto Wyllie, Wyllie may(withoutbeing obligedto doso)effectandmaintainsuchinsurance,andthecost incurred will be a debt due and immediately payable from the Contractor to Wyllie.
6.3 Effect of insurances
The effecting, or failure to effect, insurance by the Contractor will not in any way limit or reduce any of the Contractor’s obligations or liabilities under this Contract or at law.
7. Variations
(a) The Contractor must not Vary the Activities, except as directed by Wyllie under this clause 7.
(b) Wyllie may at any time direct the performance of a Variation by issuing a written direction, which is expressed to be a “Variation Order” (Variation Order), and the Contractor must comply with the Variation Order.
The value of any Variation will be determined by Wyllie and will be added to, or deducted from, the Contract Price.
8. Payment under the Contract
8.1 Contract Price
(a) Subject to the performance by the Contractor of its obligations under this Contract, and this clause 8, Wyllie will pay to the Contractor the Contract Price.
(b) The Contractor may submit a payment claim to Wyllie, in respect of the Activities performed by the Contractor under this Contract, upon the date Wyllie confirms in writing that the Activities have been completed.
(c) Wyllie must (subject to its right to set-off under clause 8.2) pay the Contractor the amount claimed in the payment claim or, if a different amount has been certified by Wyllie, the amount certified as payable by Wyllie to the Contractor, no later than the Payment Date.
(d) Any payment made by Wyllie to the Contractor is deemed to be a payment on account only and is not evidence of the value of the Activities performed or that the Activities have been satisfactorily completed.
8.2 Set Off
(a) Despite anything to the contrary, and without limiting Wyllie’s other rights, entitlements and remedies, Wyllie may, at any time, and from time to time, deduct or set- off, from any money due or payable by Wyllie to the Contractor under this Contract, any money due or payable (or reasonably claimed to be due or payable) by the Contractor to Wyllie under or in connection with this Contract or otherwise.
8.3 Deposit
The Contractor may, on terms acceptable to Wyllie, submit a claim for a deposit to be paid in supplying goods including materials, plant and equipment, which is fully refundable in the event of the Contractor breaches any term of this Contract or fails to deliver the goods including materials, plant and equipment within the time specified by Wyllie.
9. Default and Termination
9.1 Notice of Default
(a) If the Contractor commits a breach of this Contract then, without limiting any other right it may have, Wyllie may notify the Contractor in writing (Notice of Default).
(b) If the Contractor fails, within the time stated in a Notice of Default (or, if no time is stated, within a reasonable time determined by Wyllie), to remedy the breach, Wyllie may, by notice in writing to the Contractor:
(i) engage others to, or itself, carry out any part of the whole of the remaining Activities, at the Contractor’s cost; or
(ii) terminate this Contract (including after first exercising its rights to engage others to, or itself, carry out any part of the whole of the remaining Activities).
(c) If Wyllie terminates this Contract under this clause 9.1 or clause 9.3, Wyllie will have the same rights and entitlements, and the Contractor will have the same liabilities, as it would at law had the Contractor repudiated this Contract and Wyllie accepted the Contractor’s repudiation.
9.2 Procedure upon termination or taking work out of hands
Despite anything to the contrary, if Wyllie:
(a) terminates this Contract for whatever reason; or
(b) engages others to carry out, or itself carries out, any part or the whole of the remaining Activities,
Wyllie may without payment of compensation to the Contractor, take:
(c) possession of all documents, information and the like in the Contractor’s (or the Personnel’s) possession, which are connected with the Activities and/or this Contract;
(d) an assignment (or novation) of the Contractor’s rights and benefits under any subcontracts, as well as any warranties and guarantees, and the Contractor must do all things necessary to effect such assignment or novation; and
(e) possession of such goods, plant, equipment and other things as are owned by, or leased to, the Contractor and are reasonably required by Wyllie to facilitate the completion of the Activities,
and the Contractor must do all things necessary to enable Wyllie to exercise these rights.
9.3 Termination by discretion
(a) Without limiting or prejudice to any other right available to Wyllie under this Contract or at law, Wyllie may at any time and for whatever reason (including in its sole discretion) terminate this Contract upon providing 10 Business Days prior written notice to the Contractor.
(b) Upon termination of this Contract under this clause 9.3, Wyllie will, subject to clause 8, pay the Contractor all amounts which the Contractor would otherwise have been entitled to be paid had it issued a payment claim under clause 8 (for the value of the Activities carried out) as at the date of the termination coming into effect.
(c) The Contractor acknowledges and agrees that its entitlement to be paid under clause 9.3(b) is, and will be, its sole and exclusive financial right or remedy (and that it will not be entitled to any other Claim) arising from or in connection with the termination of this Contract.
10. Dispute Resolution
(a) If a dispute or difference arises between Wyllie and the Contractor out of or in connection with the Activities or this Contract, either Party may give the other a written notice specifying the dispute or difference.
(b) Upon receipt of the notice, the Parties will discuss and agree in good faith a process to resolve the dispute.
(c) Notwithstanding the existence of a dispute or difference, the Parties must continue to perform the Activities and this Contract.
11. Making Claims
To the maximum extent permitted by law, and despite anything else to the contrary, the Contractor will not have any right to make any Claim against Wyllie, and will be absolutely barred from making such a Claim, unless the Contractor gives to Wyllie:
(a) a written notice, not later than 15 Business Days after the circumstances on which the Claim is based first arose, that it intends to make a Claim; and
(b) a further written notice, not later than 10 Business Days after the issue of the notice under clause 11(a)(a), providing detailed particulars of the basis for, and the quantification of, the Claim sufficient to enable Wyllie to make an informed assessment of the merits of the Claim.
12. General
12.1 Indemnities
(a) The indemnities in this Contract are continuing, separate and independent obligations and survive the termination or expiry of this Contract.
(b) Each indemnity conferred by this Contract is payable by the Contractor, as a debt due and immediately payable, upon demand by Wyllie.
12.2 Governing Law and Jurisdiction
The law governing this Contract is the law of the State or Territory stated in the Completed Purchase Order (and if none is specified, then the relevant State or Territory where the Activities are being completed) and the Parties irrevocably submit to the non-exclusive jurisdiction of the Courts exercising jurisdiction in that State or Territory.
12.3 Entire Agreement
(a) This Contract contains the entire agreement and understanding between the Parties on everything connected with the subject matter of this Contract and supersedes and prevails over any prior agreements or understanding between the Parties.
(b) Despite clause 13.3(a), if the Parties have entered into a written and legally binding agreement with respect to the Site, which is intended to cover the performance of activities such as the Activities from time to time, then to the extent there is any inconsistency, ambiguity or discrepancy in or between this Contract and that other agreement, then the highest standard or most onerous obligation will apply to the Contractor.
12.4 Relationship
This Contract does not create a relationship of employment, agency or partnership between the Parties. Any appointment of the Contractor pursuant to this Contract is not exclusive and Wyllie may, at their option, appoint other contractors or consultants to provide services (including any services contemplated by this Contract) at any time.
12.5 Waiver
(a) The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
(b) Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given and only if given in writing.
12.6 Amendment
This Contract may only be amended by the written agreement of the Parties (but this clause does not limit the right to direct Variations under this Contract).
12.7 Severability
The Parties agree that a construction of this Contract that results in all provisions being enforceable is to be preferred. If a part of this Contract is illegal or unenforceable or otherwise invalid, then such invalidity will not affect the validity of any other part of this Contract (except to the extent made necessary by such invalidity).
12.8 Survival
Clauses 2, 4.2, 4.3, 4.4, 8.2, 9.1(b) and (c), 9.2, 10 and 11
will survive the termination or earlier expiry of this Contract.
Part B – Definitions
Unless and to the extent the context requires or indicates otherwise:
Activities means the supply of any services, goods and/or works (including those referred to in, or otherwise contemplated by, the Completed Purchase Order) which the Contractor is or may be required to carry out under this Contract.
Approval means any licence, permit, determination, consent, approval, certification, authorisation or other requirement of any Authority in connection with the Relevant Matters.
Australian Standards means the standards published by Standards Australia.
Authority means any governmental department or body, council, statutory authority or body or any other person or entity which has a right to impose a requirement or whose approval is required with respect to, or in connection with, the Relevant Matters.
Business Day:
(a) means any day other than a Saturday or Sunday or a public holiday in the jurisdiction in which the Site is located; or
(b) where the Security of Payment Act applies, has the meaning given to that term for the purpose of the relevant Security of Payment Act.
Claim means any request, demand, action, right, entitlement, proceeding or other claim under, in relation to, or in connection with, the Relevant Matters, including for any relief, payment or damages (whether under this Contract, under an indemnity, warranty or guarantee, or otherwise), including in tort (including negligence), for breach of contract or quasi contract, for misrepresentation, in equity, under any statute (except any part of a statute which cannot be excluded by agreement), for unjust enrichment or restitution or otherwise under any other principle of law.
Commencement Date means the date so described in the Completed Purchase Order,
Completed Purchase Order means the completed purchase order to which these terms and conditions are attached.
Confidential Information includes:
(a) all aspects of this Contract and all matters arising from the Activities; or
(b) any commercially sensitive documentation or information;
(c) or other information in any form concerning the Members of Wyllie Family to which the Contractor gain access whether before, during or after the Activities,
whether or not such information is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed by the discloser to the recipient or received, acquired, overheard, or learnt by the recipient in any way whatsoever.
Contract means this agreement between Wyllie and the Contractor constituted by the Completed Purchase Order and these terms and conditions attached to the Completed Purchase Order, together with any schedules, annexures or appendices attached to these terms and conditions.
Contract Price means the sum ascertained by Wyllie in accordance with this Contract, by using the lump sum in the Completed Purchase Order, as adjusted for any additions or deductions made under this Contract.
Defect means:
(a) any defect, fault, omission or error in or with respect to the Activities or the Materials; or
(b) any wrongful act or omission of the Contractor or the Personnel, including any aspect of the Activities or Materials which are not in accordance with the requirements of this Contract.
Insurance Policy means each of the following insurance policies:
Public and Products Liability Insurance
The Contractor must effect a policy of public and Products liability insurance to cover liability for loss or damage to property and the death of or injury to any person arising out of or in connection with the performance of the work under the Contract. The insurance policy must:
(a) provide cover of not less than $5,000,000 for any one occurrence and unlimited in the aggregate;
(b) be maintained until the end of the contract/installation/ works on site;
(c) include a principal’s indemnity extension indemnifying Wyllie for liability arising out of the Contractor’s acts;
(d) with respect to clause (c), include a cross-liability clause in favour of Wyllie; and
(e) include waiver of subrogation in favour of Wyllie.
Workers Compensation Insurance
The Contractor must effect and maintain workers compensation insurance as required by Law in the State of Western Australia.
Goods Insurance
If goods including materials, plant or equipment are supplied under this Contract, the Contractor must effect a policy of insurance insuring the goods supplied under the contract against loss or damage. The insurance policy must:
(a) provide cover of not less than their replacement value;
(b) be maintained until the Contractor ceases to be responsible for the care of anything and Wyllie’s final acceptance of the good supplied/works; and
(c) cover goods on and off site including offsite manufacture.
Insurance of Contractor’s Plant
If services are supplied under this Contract, the Contractor must ensure that, at all times, the Contractor’s plant and equipment is insured to provide cover against loss or damage for its market value.
Professional Indemnity Insurance
If the scope of services includes design, advice, management or any other professional services the Contractor must effect a policy of professional indemnity insurance to cover liability for breach of professional duty (whether owed in contract or otherwise) by the Contractor or any Secondary Subcontractor in performing the Work under the Contract. The insurance policy must:
(a) provide cover of not less than $5,000,000 for any one claim and in the aggregate; and
(b) be maintained from the Commencement Date to the date which is 7 years after the completion of all of the Activities;
(c) ensure that every consultant Secondary Subcontractor is separately insured for professional indemnity with cover not less than $5,000,000 for any one claim and in the aggregate.
Transit Insurance
If goods including materials, plant or equipment are supplied under this Contract, the Contractor must effect and maintain transit insurance until the end contract period to cover liability loss or damage to; and for the full cost of replacement of, goods, materials, plant and equipment, both refurbished and non-refurbished or manufactured anywhere in the world, whilst in transit to or from the Site.
and Insurance Policies has a similar meaning.
Intellectual Property Rights includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, and includes all copyright and analogous rights, as well as all rights in r elation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names, internet domain names or Moral Rights.
Intended Purpose means the purpose as could be reasonably inferred from what is stated in this Contract.
Issue has the meaning given to that expression under clause 2.1(b)(iii).
Law means all applicable:
(a) Acts, Ordinances, regulations, statutory instruments, by-laws, orders, awards and requirements, guidelines and proclamations of any Authority;
(b) Approvals, codes and standards (including Australian Standards); and fees and charges payable in connection with the foregoing.
Materials means all reports, calculations, documents, data, output, drawings, specifications, images, information and other products, goods or materials used, provided, supplied or prepared by or on behalf of the Contractor or the Personnel in connection with the Relevant Matters.
Members of Wyllie Family means Rhonda Wyllie, Melissa Karlson, Luke Wyllie and Suzanne Julian and their respective family.
Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
Others has the meaning given to that expression under clause 3.2(a).
Wyllie means Wyllie Group Pty Ltd subsidiary company referred to in the Purchase Order (Wyllie).
Parties means Wyllie and the Contractor, and Party means either of them as the case may require.
Payment Date means the period so described in the Completed Purchase Order, commencing on the date of receipt of the relevant payment claim validly submitted by the Contractor.
Personnel means the Contractor’s employees, officers, agents, consultants and contractors and any of their employees, officers, agents, consultants and contractors.
Records includes all documentation, data and information, including financial and related records, in whatever form they may be kept (whether written, electronic, or otherwise), relating to or pertaining to this Contract, whether such documentation, data or information is kept, retained or in the possession of the Contractor or any Personnel, including all accounting records, policies and procedures, subcontract files, all paid vouchers (including those for out of pocket expenses), other reimbursements supported by invoices, ledgers, cancelled checks, deposit slips, bank statement s, journals, original estimates, estimating work sheets, contract amendments and change order files, back charge logs as well as all supporting documentation, insurance documents, payroll documents, timesheets, memoranda and correspondence.
Relevant Matters means this Contract and/or the Activities (as the case may be).
Schedule means a schedule attached to these terms and conditions, unless expressly stated otherwise.
Security of Payment Act means the applicable Act regulating security of payment in the building and construction industry.
Site means the land or premises, or any part of it, so described in the Completed Purchase Order.
Variation means any change to the Activities, including an addition or omission in the scope, quality or character of the Activities, and Vary has a similar meaning.
Variation Order has the meaning given to that expression under clause 7.