1. Definitions and Interpretation
1.1 In the Contract:
‘Associate’ means an officer, employee, agent, contractor, subcontractor, licencee, consultant, subconsultant, invitee, client or adviser of the Principal or the Contractor (as the case may be) but does not include the Principal or the Contractor;
‘Authorised Representative’ means the Principal’s representative as notified (either orally or in writing) to the Contractor or any replacement notified in accordance with Clause 12;
‘Business Days’ has the meaning given to it in the SOP Act;
‘Claim’ includes any action, claim, demand or proceeding, including for the payment of money or any other relief or remedy, and whether arising in contract, tort (including negligence), restitution, under statute or otherwise at law or in equity;
‘Competent Contractor’ means a qualified, competent, professional contractor experienced in performing works of a similar nature and complexity to the Works;
‘Confidential Information’ means all information and materials, in any form concerning the Principal, the Works, the Contract or which the Principal indicates to be confidential, but does not include information in the public domain (other than due to a breach of confidentiality by any person);
‘Contract’ means the agreement between the parties constituted by the Contract Documents;
‘Contractor’ means CJ Pearce Pty Ltd ACN 006 674 497;
‘Contract Documents’ means:
(a) Special Conditions (if any); and
(b) these General Conditions.
‘Contract Sum’ means the amount to be paid by the Principal to the Contractor as specified by the Contractor (either orally or in writing) but excluding any additions or deductions which may be required to be made by the Contract;
‘Contractor’s Representative’ means the Contractor’s representative as notified to the Principal (either orally or in writing);
‘Date for Practical Completion’ means the date or the expiry of the period for Practical Completion as advised by the Contractor (if any);
‘Date of Practical Completion’ means the date on which Practical Completion was reached as determined by the Principal (acting reasonably);
‘Defects Liability Period’ means 52 weeks from the Date of Practical Completion; ;
‘Discrepancy’ includes any error, omission, ambiguity, inconsistency or discrepancy;
‘General Conditions’ means this document;
‘Goods’ means any items of plant or material which the Contractor is obliged to supply, or supply and install, pursuant to the Contract Documents;
‘Legal Requirements’ means:
(a) all laws (including statutes, regulations, the common law, codes and standards) relevant to the Works; and
(b) the requirements of all authorities and persons having jurisdiction over or in respect of any part of the Site or the Works;
‘Loss’ includes any cost, loss, liability, action, damage or expense, howsoever arising;
‘OH&S Laws’ means all relevant Legal Requirements concerning the health, safety and welfare of people;
‘Payment Claim’ means a claim for payment by the Contractor which includes a tax invoice and sets out:
(a) details of that part of the Works carried out to which the claim relates;
(b) details of any Variations included in the claim;
(c) the amount claimed by the Contractor and the basis for calculation of that amount; and
(d) any information required by the SOP Act;
‘Payment Schedule’ means a statement of the Principal’s opinion of the moneys due from the Principal to the Contractor or from the Contractor to the Principal (as the case may be) including the reasons for any difference;
‘Practical Completion’ means that stage in the carrying out of the Works when:
(a) the Works are complete in accordance with the Contract except for minor omissions and minor defects;
(b) those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion have been carried out and passed; and
(c) documents and other information required under the Contract or which, in the opinion of the Principal, are required for the use, operation and maintenance of the Works have been supplied;
‘Principal’ means the entity / or persons purchasing the goods, services or works;
‘Site’ means the site or sites for the Works;
‘Site Conditions’ means any physical conditions on, above or below the surface of the Site including man-made things, hazardous materials or changes in physical conditions prior to the date the Contractor commences work on Site;
‘Site Working Hours’ means Monday to Friday (excluding public holidays in Victoria) between the hours of 0600-1800.
‘SOP Act’ means the Building and Construction Security of Payment Act 2002 (Vic);
‘Special Conditions’ means the amendments (if any) to the Contract contained in Schedule 1 to these General Conditions;
‘State’ means the State or Territory of Australia in which the Site is situated;
‘Variation’ means a variation to the Works including an increase, addition, decrease, omission or change to the scope of the Works or the acceleration of the rate of performance of the Works;
‘Variation Direction’ has the meaning given in Clause 16.1; and
‘Works’ means the works to be carried out and completed as agreed between the parties, including Variations directed by the Principal in accordance with the Contract.
1.2 In the event of any inconsistency between the General Conditions, and the Special Conditions, the Special Conditions shall prevail.
1.3 The Contract comprises the entire understanding between the parties and no regard will be had to any prior dealings. Any terms that may have been attached or embodied in the Contractor’s tender (if any) or other correspondence are deemed to have been withdrawn in favour of the terms stated in the Contract.
1.4 The Contract comes into effect and operates from the receipt by the Contractor of a direction (whether orally or in writing) to attend the premises nominated by the Principal to perform the services requested by the Principal;
1.5 The obligations, warranties and representations of the Contractor under the Contract apply to any part of the Works carried out by the Contractor prior to commencement of any Works.
1.6 In the interpretation of the Contract, no rule of construction applies to the disadvantage of the Principal on the basis that the Principal prepared or put forward the Contract or any part of it.
1.7 The Contract is governed by and is to be construed in accordance with the laws of the State.
1.8 Any provision of this Contract that is held to be illegal, invalid, void, voidable or unenforceable must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
1.9 If it is not possible to read down a provision as required by Clause 1.8, the part or all of the provision that is unlawful or unenforceable will be severed from this Contract and the remaining provisions continue in force.
1.10 Without limiting any other way in which documents or notices may be given by a party to the other party under this Contract, a notice or document may be given by electronic delivery to the email address provided by each party to the other or to a substitute email address advised by one party to other from time to time as an address at which notices may be given.
1.11 All obligations to indemnify under the Contract survive termination or expiration and completion of the Contract.
2. Contractor’s primary obligations and acknowledgments
2.1 The Contractor must:
(a) carry out and complete its obligations under the Contract:
(i) in accordance with the Contract Documents;
(ii) in a proper and workmanlike manner;
(iii) with the professional skill, care and diligence that would be expected of a Competent Contractor; and
(iv) using suitably qualified, licensed and experienced persons and subcontractors; and
(b) progress the performance of the Works with due expedition and without delay and will use its reasonable endeavours to achieve Practical Completion by the Date for Practical Completion (which shall be a target date);
(c) where the Contractor has not achieved the Date for Practical Completion the Contractor must achieve Practical Completion as soon as reasonably practical;
(d) comply with all Legal Requirements as required by or stated in the Contract Documents;
(e) ensure that upon Practical Completion the Works comply with all Legal Requirements as required by or stated in the Contract Documents; and
(f) obtain all approvals required under any Legal Requirement for the performance of the Works or otherwise required by the Contract Documents to be obtained by the Contractor.
2.2 The Contractor must install any Goods in accordance with the requirements of the Contract and the party responsible for the supply of such Goods must ensure that those Goods are:
(a) new, unless expressly stated otherwise in the Contract;
(b) suitable, appropriate, adequate and fit for the purpose for which the Works are required, as stated in the Contract Documents; and
(c) of merchantable quality and free from defects.
2.3 The Contractor does not warrant the performance output of the Works. Any performance data provided by the Contractor is based on the Contractor’s experience and is provided on a no reliance or liability basis.
3. Principal’s primary obligation
3.1 Subject to the Contract, the Principal must pay the Contractor the Contract Sum, as adjusted by any additions or deductions made under the Contract.
4. Entire Agreement
4.1 The Contract constitutes the entire agreement between the parties and supersedes and cancels any contract, deed, arrangement, related condition, purchase order, warranty, indemnity or representation imposed, given or made by a party (or an agent of a party) prior to the date of the Contract.
5. Reliance Information
5.1 The Principal:
(a) must, as soon as reasonably practicable, make available to the Contractor all reasonably necessary information and approvals to enable the Contractor to perform the Work;
(b) is responsible for the adequacy, suitability and accuracy of the information, documents and other particulars provided to the Contractor pursuant to this Contract; and
(c) must do all things reasonably required by the Contractor to allow it to perform the Works.
5.2 The Principal acknowledges and agrees:
(a) the Contractor has entered into the Contract on the basis that the Contractor has relied upon the information provided by the Principal, including their suitability, completeness, accuracy or adequacy, and would not have entered into the Contract but for those agreements and representations; and
(b) to the extent permitted by law, the Principal is not entitled to make any claim against the Contractor arising out of or in connection with the Contractor’s reliance on any information provided to the Contractor by the Principal.
6. Discrepancies
6.1 If either party identifies any Discrepancy in or between any one or more of the Contract Documents, then that party must notify the other party. On becoming aware of a Discrepancy, the Principal will direct the Contractor as to how the Discrepancy is to be resolved.
6.2 If the Contractor is required to perform additional work as a consequence of a Discrepancy, the Contractor is entitled to have its reasonable costs incurred in overcoming the Discrepancy valued under clause 16.4 and added to the Contract Sum.
7. Confidentiality
7.1 Except as required by law, the parties must, and must procure that its Associates, keep confidential and not disclose to any third party the Confidential Information.
7.2 Technical information, consisting of any drawings, specifications, calculations and design supplied by the Contractor shall remain the property of the Contractor and must not be copied, adapted, used or disclosed to any third party, except with the Contractor’s prior written approval.
8. Subcontractors and dealings with Contract
8.1 The Contractor:
(a) must not assign or transfer the Contract or any payment or any other right, under the Contract without the prior written approval by the Principal;
(b) may only subcontract a part of the Works with the prior written approval of the Principal (which approval may be conditional); and
(c) remains fully responsible for, and will not be relieved from, any liability for the Works notwithstanding that the Contractor has subcontracted the carrying out of any part of the Works.
8.2 The Principal must not assign or transfer the Contract or any payment or any other right, under the Contract without the prior written approval by the Contractor.
9. Occupational health and safety
9.1 The Contractor is responsible for all aspects of health and safety in the carrying out of the Works and must:
(a) comply with and procure that its Associates comply with all OH&S Laws;
(b) implement and maintain a system of obtaining and updating information on all OH&S Laws;
(c) in carrying out the Works, eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to health and safety, then reduce those risks as far as is reasonably practicable; and
(d) without limiting the Contractor’s obligations arising out of the Contract or at law, notify the Principal immediately (and in any event within 12 hours of such matter arising) of any health or safety matters or incidents arising out of or in connection with the Contract.
9.2 The parties acknowledge and agree that for the purposes of the OH&S Laws, the Contractor is not appointed as ‘principal contractor’ for any of the Works carried out at the Site.
10. Damage to persons, property and the Works
10.1 The Contractor must not cause:
(a) the loss of or damage to any property (whether property of the Principal or any other person); and
(b) the death or personal injury of any person,
arising out of or in connection with the carrying out of the Works.
10.2 The Contractor must, at its own expense, promptly make good any loss or damage to the Works caused by the Contractor or its Associates.
10.3 The Contractor must, as directed by the Principal, promptly make good any loss or damage to the Works to the extent caused by the Contractor or its Associates. To the extent the loss or damage was not caused by the Contractor or its Associates and the Principal directs it to be reinstated, the Contractor will be entitled to have its reasonable costs incurred in making good that loss or damage valued under Clause 16.4 and added to the Contract Sum.
10.4 The Contractor must minimise nuisance and unreasonable noise caused by the carrying out of the Works.
10.5 The Contractor will use best endeavours to minimise vibration and the ingress of dust during transportation of any Goods to the Site.
11. Insurance and liability
11.1 Before commencing the Works, the Contractor must effect and maintain the following insurance policies for the duration of the Works:
(a) a public liability insurance policy which covers:
(i) the Principal, the Contractor and its subcontractors employed in the Works for their respective rights and interests and their liability to third parties; and
(ii) the Contractor’s liability to the Principal and Principal’s liability to the Contractor for loss of or damage to property and the death of or injury to any person,
for an amount no less than $10 million.
(b) contract works insurance to cover liability against loss or damage to the Works caused by the Contractor in breach of clause 10.1 and in respect of the rectification of defects during the Defects Liability Period for the value of the Works; and
(c) workers compensation insurance to cover liability arising out of death of or injury to persons employed by the Contractor, including liability at statute and at common law.
11.2 The Contractor must ensure that each of its subcontractors are similarly insured.
11.3 Each policy must be taken out with a licensed insurer. Before commencing the Works and whenever requested by the Principal, the Contractor must produce evidence to the satisfaction and approval of the Principal that it has satisfied all of its insurance obligations under the Contract.
11.4 The Contractor’s insurance program does not accept cross liability, waiver of subrogation, agreement to hold harmless, insurer approval, any indemnities or for insurers to notify the Principal directly of any circumstances.
11.5 To the extent permitted by law, the Contractor has no liability to the Principal under or in connection with this Contract (including for negligence) for any indirect, special or consequential loss, including for loss of production, loss of profits, loss of income, loss of contract or for business interruption.
11.6 To the extent permitted by law, the Contractor’s maximum aggregate liability to the Principal under or in connection with this Contract (including for negligence) shall not exceed the Contract Sum.
12. Representatives
12.1 The Principal has appointed the Authorised Representative.
12.2 The Authorised Representative may give directions and carry out all of the Principal’s powers or functions under the Contract as agent of the Principal.
12.3 The Principal may replace the Authorised Representative at any time and notify the Contractor in writing of that appointment.
12.4 The Contractor’s Representative must be in attendance on Site at all times during the carrying out of the Works at the Site.
12.5 The Principal agrees not to solicit or entice away from the Contractor any of its employees, consultants or customers, without the Contractor’s prior written approval.
13. The Site and Site Conditions
13.1 The Contractor must carry out the Works during the Site Working Hours or as otherwise agreed between the parties in writing from time to time.
13.2 Upon formation of the Contract under Clause 1.4, the Principal will provide the Contractor with non-exclusive access to the Site or a sufficient part of the Site to enable the Contractor to commence the Works.
13.3 To the extent that the Contractor is required to perform additional work due to the existence of an unanticipated Site Condition, the Principal will pay to the Contractor its reasonable direct costs necessarily and reasonably incurred by the Contractor.
14. Inspection and Testing
14.1 The Principal shall be notified and invited to attend to witness any operational and electrical performance tests required by the specification.
15. Defects Liability Period
15.1 The Defects Liability Period commences on the Date of Practical Completion.
15.2 During the Defects Liability Period, the Principal may give the Contractor a direction to rectify:
(a) a defect in workmanship, which must be rectified by the Contractor; or
(b) a defect in the Goods supplied by a subcontractor engaged by the Contract, in which case the Contractor must enforce its available rights against the subcontractor in accordance with the manufacturer or supplier’s warranty,
in each case within a reasonable period of time nominated by the Principal for the rectification works. If rectification is not commenced or completed by the date stated in such direction, the Principal may have the rectification carried out by others. All costs and expenses incurred by the Principal in having rectification works carried out (for defects in workmanship) will be a debt immediately due and payable by the Contractor to the Principal.
15.3 The Contractor must carry out rectification of defects at times and in a manner causing as little inconvenience to the users of the Works as is reasonably possible.
16. Variations
16.1 The Principal may at any time before the Date of Practical Completion request the Contractor to provide a quotation for the carrying out of a Variation by written notice headed ‘Variation Direction’. The Contractor is not obliged to carry out a Variation other than pursuant to a Variation Direction and where the parties have reached prior written agreement on the Variation.
16.2 No Variation, including an omission of any part of the Works, will invalidate or constitute a repudiation of the Contract. The Principal may perform or procure another person to perform any part of the Works deleted or omitted by a Variation Direction.
16.3 A change in any Legal Requirement shall be a deemed Variation.
16.4 Where the Contract provides that a valuation is to be made under this Clause 16.4, the Contract Sum will be increased or decreased (as the case may be) by the amount determined by the Principal using the following order of precedence:
(a) prior agreement; and
(b) reasonable rates or prices by reference to the Contractor’s standard labour rates, plus an amount of 15% for profit and overheads.
16.5 For the purposes of a valuation under Clause 16.4, if requested by the Principal to do so, the Contractor must within 10 Business Days of such request, provide the Principal with documentation evidencing the costs or expenses incurred by the Contractor in performing the Variation.
17. Payment
17.1 The Contractor may only submit Payment Claims:
(a) on the 25th day of each month for that part of the Works carried out to the end of that month; or
(b) within 30 days after Practical Completion and (where applicable) on termination of the Contract.
17.2 If the Principal disputes the amount claimed by the Contractor in a Payment Claim, the Principal must within 10 Business Days after receiving the Payment Claim, issue to the Contractor a Payment Schedule with its reasons for the difference.
17.3 Subject to Clause 17.4, the Principal must pay the Contractor or the Contractor must pay the Principal (as the case may be) the amount set out in Payment Claims (or where the Principal issues a Payment Schedule under clause 17.2, the amount set out in the Payment Schedule) within 30 days of the date the Payment Claim was submitted by the Contractor.
17.4 Without limiting its rights at law or in equity, the Principal may deduct, withhold or set off from money due to the Contractor any debt due and payable from the Contractor to the Principal under the Contract.
17.5 The Contractor will be entitled to include in a Payment Claim payment for any Goods intended for incorporation in the Works but not incorporated, provided that (to the reasonable satisfaction of the Principal):
(a) the Goods have reasonably but not prematurely been delivered to the Site (or are stored offsite due to delays in construction or site access);
(b) ownership of the Goods will pass to the Principal upon the making of the payment claimed;
(c) the Goods are properly stored and protected; and
(d) the Contractor has obtained and is maintaining fire and theft insurance over the relevant Goods in a form and for an amount satisfactory to the Principal (acting reasonably).
17.6 Upon full payment to the Contractor of the amount claimed, the Goods the subject of the claim will be, and the Contractor will procure that they are, the unencumbered property of the Principal free of any lien or charge. The Principal irrevocably authorises the Contractor to have access to the Site in order to take possession of Goods for which the Principal does not make payment in accordance with this Contract.
18. Goods and Services Tax
18.1 In this Clause 21 words that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in that Act.
18.2 Except as otherwise provided by this Clause 18, all consideration payable under the Contract in relation to any supply is exclusive of GST.
18.3 If GST is payable in respect of any supply made by a supplier under the Contract, subject to Clause 18.5, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under the Contract.
18.4 If this Contract requires a party to pay, reimburse or contribute to an expense, loss or outgoing suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:
(a) the amount of the payment, reimbursement or contribution less any input tax credits in respect of the payment, reimbursement or contribution to which the other party is entitled; and
(b) if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.
18.5 The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST payable under Clause 18.3.
18.6 If an adjustment event occurs in relation to a taxable supply under this Contract:
(a) the supplier must provide an adjustment note to the recipient within 7 days of becoming aware of the adjustment; and
(b) any payment necessary to give effect to the adjustment must be made within 7 days after the date of receipt of the adjustment note.
19. Suspension
19.1 The Principal may suspend the carrying out of the Works or part of the Works by issuing a written notice to the Contractor. The Contractor must promptly comply with such notice and suspend the progress of the whole or part of the Works for the period of time stated in the notice, or if no time is stated, for the period of time directed by the Principal.
19.2 The Contractor must recommence the Works in accordance with any further written notice issued by the Principal to the Contractor.
19.3 If the suspension is due to an act, default or omission by the Contractor or its Associates, the Contractor is not entitled to make any Claim arising out of or in connection with the suspension. If and to the extent the suspension is for any other reason, the Principal will pay to the Contractor its reasonable direct costs necessarily and reasonably incurred by the Contractor as a result of the suspension, as assessed by the Principal under Clause 16.4.
19.4 Where the performance of the Work is suspended or rescheduled by the Principal once an agreed start date has been set, a cancellation fee of 20% of the Contract Sum shall be payable by the Principal to the Contractor, based on man hour and materials pre-committed by the Contractor to the Works (unless such resources are able to be redeployed by the Contractor).
20. Termination
20.1 In the event that the Contractor:
(a) fails to remedy a substantial default of the Contract within 10 Business Days from the date of being notified of the default by the Principal;
(b) is insolvent, has an administrator, receiver, receiver and manager, provisional liquidator, liquidator or controller appointed to it, enters into a scheme of arrangement with its creditors, is wound up or is bankrupt; or
(c) abandons the Works,
the Principal may terminate the Contract by giving written notice to the Contractor.
20.2 Upon termination under Clause 20.1:
(a) subject to Clause 17.4, the Principal will be liable to the Contractor for the value of Works performed to the date of termination and any other amounts which were due and payable at the date of termination.
20.3 In the event that the Principal:
(a) fails to remedy a substantial default of the Contract within 10 Business Days from the date of being notified of the default by the Contractor; or
(b) is insolvent, has an administrator, receiver, receiver and manager, provisional liquidator, liquidator or controller appointed to it, enters into a scheme of arrangement with its creditors, is wound up or is bankrupt,
the Contractor may terminate the Contract by giving written notice to the Principal.
20.4 Upon termination under Clause 20.3:
(a) the Principal will be liable to the Contractor for those amounts which were due and payable under the Contract as at the date of termination, together with the value of any additional Works performed to the date of termination, plus the Contractor’s demobilization costs and cancellation fee payable under Clause 19.4; and
(b) the Principal must, within 5 Business Days, return to the Contractor any security provided by the Contractor.
20.5 The Contract may be terminated at any time by the mutual written agreement of the parties.
21. Dispute resolution
21.1 If a dispute or difference between the parties arises in connection with the Contract, then either party may deliver by hand or send by registered post to the other party, a written notice of dispute identifying and providing details of the dispute.
21.2 Within 10 Business Days of receipt of a notice of dispute, the parties will together confer at least once to attempt to resolve the dispute.
21.3 If the dispute has not been resolved within 20 Business Days of receipt of a notice of dispute, either party may by notice in writing delivered by hand or sent by registered post to the other party, refer that dispute to arbitration.
21.4 Arbitration will be:
(a) effected by an arbitrator nominated by the Chairperson of The Resolution Institute Chapter of Victoria; and
(b) conducted in accordance with the Resolution Institute Arbitration Rules 2016.
22. Live work and electrical safety
22.1 It is the Contractor’s strict policy to only undertake live work or work near live conductors where it is safe to do so (in the Contractor’s opinion). In determining a safe work environment, the Contractor will have regard to:
(a) compliance with AS/NZA 4836:2023 ‘Safe Working on Low Voltage Electrical Installations, relevant Commonwealth and State Statutory Acts and Work Place Regulations’; and
(b) the Contractor’s live work procedure, which is designed to eliminate risk of injury to employees, damage to installations and unexpected power disconnections.
22.2 The Principal acknowledges and agrees that where compliance with clause 22.1 requires the Contractor to disconnect or isolate parts of the installation to undertake the Works, the additional work required shall be valued in accordance with Clause 16.4.
22.3 If during any installation work forming part of the Works, if a switchboard is found by the Contractor to be defective or deemed to be unsafe, the Contractor will immediately notify the Principal and implement an interim fix in order to minimise risk of damage to persons and property. If the power to any part of the Site is isolated in accordance with this Clause 22.3, it will not be re-energised until the existing condition has been rectified and made safe in accordance with Legal Requirements. All costs incurred by the Contractor under this Clause 22.3 shall be valued in accordance with Clause 16.4. All works undertaken under this Clause 22.3 will be notified to the chief electrical inspector (as required).
22.4 Removal of doors, covers and escutcheons can pose risk of shock or short circuit resulting in injury, damage and power outage. Where the Work requires the Contractor to remove any covers from switchboards, distribution boards, control panels and live equipment, the Contractor will remove these only on the strict understanding that all devices, busbars, equipment and wiring that can been seen until the covers are removed are properly secured, fitted with all required insulation in good condition and with all electrical connections properly tightened, are installed in a safe and proper manner that complies with all safe workplace requirement and applicable Australian Standards. The Contractor is not liable for any claims for any damages whatsoever arising consequently where incidents occur through any such non‐compliance.