Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
1.
INTERPRETATION
1.1 In this Agreement, unless there is something in the subject or context inconsistent therewith, the following
terms have the following meanings;
Defects Liability Period: means the period of time stated in Item 5 of the Schedule and shall commence on
the Date of Practical Completion of the Works under the Head Contract.
Head Contract: means the contract between the Builder and the Proprietor made on the date appearing on
Item 6 of the Schedule.
Site: means the land and other places made and to be made available to the Sub-Contractor for the purpose
of this Agreement.
1.2 In the interpretation of this Agreement unless there is something in the subject or context inconsistent
therewith:
(a) Words importing the singular shall be deemed to include the plural and vice versa.
(b) Words importing any gender shall be deemed to include all genders.
(c) Words importing persons shall be deemed to include all bodies and associations, corporate or
incorporated, and vice versa.
(d) Headings are included for convenience only and shall not affect the interpretation of this Agreement or
any Schedule.
(e) All references to Clauses, are to clauses of this Agreement and all references to Schedules are to
schedules of the Articles of Agreement and this Agreement shall be read and construed as a whole.
2.
PERFORMANCE OF SUB-CONTRACT WORK
(a) The sub-Contractor shall execute the Sub-Contract Works in accordance with this Agreement and in
accordance with any directions of the Builder given pursuant to the provisions of this Agreement and to
the reasonable satisfaction of the Builder.
(b) For the purposes of this clause the word “direction” includes any agreement approval, authorisation,
certificate, decision, demand, determination, direction, explanation, instruction, notice, notification, order,
permission, rejection, request, or requirement which the Builder may make, give or issue pursuant to the
provisions of this Agreement.
(c) Directions as referred to in the preceding sub-clause shall not constitute a variation to this Agreement
unless the written direction specifically states that a variation is applicable.
(d) Directions may be given either in writing or orally. Where they are oral, confirmation in writing will be
given as soon as practicable.
3.
DOCUMENTS AND DRAWINGS
(a) If there is any inconsistency within any one of the documents forming the Agreement, then the provision
which imposes a greater or higher requirement, standard or level of service on the Sub-Contractor will
prevail and the Sub-Contractor will comply with this requirement at its own cost, with no claim or variation
able to be asserted upon the Builder under the Sub-Contract.
(b) If the Sub-Contractor finds any ambiguity, discrepancy or inconsistency in or divergence between any
drawings, plans or specifications and/or this Agreement he shall immediately give notice in writing thereof
to the Builder specifying the same and applying for instructions.
(c) The Builder shall issue instructions accordingly and the Sub-Contractor shall comply with and observe the
same and any necessary correction shall not vitiate this Agreement but may as determined by the Builder
in its sole discretion be deemed to be a variation thereof.
(d) Unless otherwise expressly provided, the Lump Sum Contract Price shall be inclusive of all ancillary and
other works and expenditure, whether specifically mentioned or described in the Contract Documents or
not, which are necessary to carry out and bring to completion the Sub-Contract Works.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 1 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
(e) The Sub-Contractor shall make allowance for slight variations in dimensions shown on drawings which
may be caused by unavoidable inequalities in the sizes of materials and any such variations shall be as
agreed or in default of agreement as decided by the Builder. Where any discrepancies exist between
figured and scaled dimensions the figured dimensions shall prevail.
(f)
The Sub-Contractor shall supply to the Builder three (3) copies of shop drawings and other written
information, as he is required by this Agreement to supply. If the Builder considers that such shop
drawings and/or other written information are suitable for use the Sub-Contractor shall be given
permission to use them accordingly
(g) Notwithstanding the granting of permission to use any such shop drawings and/or other written
information as aforesaid the Sub-Contractor shall be bound to carry out and complete the Works strictly in
accordance with the Contract Documents.
(h) Permission for the use of any such shop drawings or other written information shall not relieve the SubContractor from the full responsibility for the correctness of such shop drawings or other written
information.
4.
(i)
On completion of the Works the Sub-Contractor shall deliver to the Builder one complete set of plans,
specifications, maintenance instructions, operational procedures and full details of the Works carried out.
The plans shall be dimensioned to facilitate location and identification of all pipes and conduit positions
above and below ground.
(j)
The Builder reserves the right to reject the plans should they not conform with standards generally in use
in the Building Industry at the time.
SUB-CONTRACTOR TO INFORM HIMSELF
The Sub-Contractor shall be deemed to have:
(a) Examined carefully and to have acquired actual knowledge of the contents of all Drawings, Specifications,
Schedules, Conditions of Tendering, Sub-Contract Documents, and any other information made available
in writing by the Builder to the Sub-Contractor for the purpose of tendering; and
(b) Examined all information relevant to the risks, contingencies and other circumstances having an effect on
his tender and which is obtainable by the making of reasonable enquiries; and
(c) Satisfied himself as to the correctness and sufficiency of his tender for the Sub-Contract Works and that
his price covers the cost of complying with all his obligations under this Agreement and of all matters and
things necessary for the due and proper performance and completion of this Agreement.
(d) Failure of the Sub-Contractor to inform himself of the matters referred to in this Clause 4 shall not relieve
him of his responsibilities under this Agreement.
(e) Failure of the Sub-Contractor to inform himself of the matters referred to in this Clause 4 shall mean that
the Sub-Contractor is unable to assert a variation claim or any other claim upon the Builder under the
Sub-Contract.
5.
REQUIREMENTS OF STATUTES
(a) The Sub-Contractor shall comply with the requirements of all Acts of the Parliament of the
Commonwealth of Australia and with the requirements of the provisions of all Acts of the Parliament of
the State and Acts of Ordinances of the Territory in which the Sub-Contract Works are carried out, and
with the requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued
under any such Act, authorities in any way affecting of applicable to the Sub-Contractor works and shall
give all notices and pay and bear all fees in connection therewith.
(b) If, in the opinion of the Sub-Contractor, the provisions of any document forming part of this Agreement are
at variance with any such requirements, the Sub-Contractor shall give written notice within twenty-eight
days (28) or earlier if required by the Head Contract of the date on which the Sub-Contractor becomes
aware of any such requirement as aforesaid to the Builder, specifying the departure from such provisions
which he considers necessary to comply with such requirements and the reasons therefore, and applying
for instruction thereon. If the Builder at its discretion only determines that the form, quality or quantity of
any of the Work under this Agreement should be varied, such variation shall be subject to the provisions
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 2 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
of Clause 23 thereof. Claims made after the required time period will thereafter be barred and no claims
will be accepted under the Sub-Contract.
6.
PROTECTION OF PERSONS AND PROPERTY
Where appropriate to the execution of the Sub-Contract Works the Sub-Contractor shall at its own expense:
(a) Provide, erect and maintain all barricades, guards, fencing, temporary roadways and footpaths, signs,
and lighting; and
(b) Provide and maintain all watching and traffic flagging, lawfully required by any public, municipal or other
authority necessary for the protection of the Sub-Contract works or of other property, or for the safety and
convenience of the public and others, and shall remove the same when no longer required.
(c) Indemnify and compensate the Builder where the Builder has taken urgent action to protect the SubContract works, people or property as required in circumstances where either it was not practicable for
the Sub-Contractor to take such action or where the Subcontractor should have taken such urgent action
but did not do so to the Builder’s satisfaction. All costs incurred by the Builder shall be as a debt due to
the Builder, to be deducted from future payments or paid from any security or retention held. Where time
permits, the Builder shall advise the Sub-Contractor in advance in writing of its intention to take urgent
action pursuant to this clause.
7.
INSURANCE
7.1 (a) WORKERS COMPENSATION
The Sub-Contractor shall insure against all liability, loss, claim or proceedings, to or by or in respect of
any person employed or engaged by the Sub-contractor in connection with the Sub-Contract Works of for
whom the Sub-Contractor can be held in any way liable of responsible whether arising under any Act
relating to Workers’ Compensation or Employers’ Liability or at Common Law.
(b) PUBLIC LIABILITY
The Sub-Contractor shall be solely liable for, and shall indemnify the Builder in respect of, and shall
insure against all liability, loss, claim or proceedings whatsoever arising under any statue, [other than as
provided in Clause (a)], or at Common Law in respect or in connection with the death of or injury to any
person, or any loss of or damage to any property arising out of or in any way connected with or caused by
the execution of the Sub-Contract Works.
(c) CONTRACT WORKS
(i)
The Sub-Contractor shall insure the works with a Contract Works Policy, and the policy shall name
the Builder as an interested party, which shall cover (inter alia) the whole of the Sub-Contract Works
and any extensions or variations to the extent of their full value. The Sub-Contractor shall give two
weeks notice of an attempted termination of such policy by the insurer.
(ii)
Alternatively, should the Sub-Contractor choose to not insure for Contract Works and seeks
coverage under the Builder’s policy and nominates this on the Statutory & Contract Compliance
Form under the Insurance heading (and signs and returns the form accordingly), then the SubContractor will be covered under the Builder’s Contract Works policy. By stating they have
nominated to be included under the Builder’s Contract Works policy, the Sub-Contractor has agreed
to indemnify the Builder for the total of all costs (including rectification) relating to a claim in which
they are wholly liable/responsible. This indemnity may be satisfied by an excess payment or may
require an amount greater than that depending on policy wording, and the circumstances of and total
value of the claim. The excess amount is payable by the Sub-Contractor immediately (within five
business days) upon demand to the Builder. The Builder is also entitled to recover the excess
amount from the Sub-Contractor from any future payments or securities held in relation to the SubContract if required. Information on excess amounts are available upon request from the Builder.
Payment of excess is important, to ensure the claim is progressed in a timely manner so any works
relating to the Sub-Contract and Head Contract are not held up by the claim. Any claim or potential
claim relating to this insurance arrangement that the Sub-Contractor becomes aware of, is to be
communicated to the Builder immediately (same day), so that any damages/issues can be mitigated.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 3 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
The Sub-Contractor also agrees, to actively assist the Builder with the timely resolution of any claim
relating to the Contract Works policy and to conduct themselves in a manner that does not in any
way jeopardize the Builder’s rights and interests under the policy.
7.2 Wherever insurance is effected in joint names or is extended to cover the Builder as principal then the policy of
such insurance shall provide that in so far as the policy may cover more than one insured all insuring
agreements and endorsements with the exception of limits of liability shall operate in the same manner as if
there were a separate policy of insurance covering each named insured.
7.3 The Sub-Contractor shall effect and maintain during the currency of this Agreement, up to and including the
defects liability period, the insurance policies referred to in this Clause 7.1 with an insurer approved in writing
by the Builder and shall, whenever requested in writing to do so by the Builder, produce evidence to the
satisfaction and approval in writing of the Builder of such policy or policies of insurance. If the Sub-Contractor
fails to effect and maintain adequate insurance policies in accordance with this Clause the Builder may effect
and maintain such policies including the payment of premiums in respect thereof, and the amount paid for the
premiums shall be a debt due and owing by the Sub-Contractor to the Builder.
7.4 The Sub-Contractor shall ensure that its own Sub-Contractors effect and/or maintain similar insurance policies
to those that are required by the Sub-Contract between the Builder and the Sub-Contractor, including workers
compensation as required by law.
8.
SUB-CONTRACTOR’S REPRESENTATIVE
At all times whilst actually engaged in the execution of work under this Agreement the Sub-Contractor will
have a competent foreman or employee present who will be authorised and able to take and carry out such
instructions as the Builder may be entitled to give regarding the work under this Agreement, and who will be
authorised and able to make arrangements which may be necessary or expedient. In the absence of the SubContractor’s representative to the extent that the Builder would be entitled to give instructions to the SubContractor’s representative, the Builder may make such arrangements on the Sub-Contractor’s behalf as
necessary to carry out the aforesaid instructions. The cost involved in making such arrangements will be
borne by the Sub-Contractor.
9.
SET OUT
The Sub-Contractor shall be responsible for all set out, taking up levels, levelling and plumbing work from set
out and datum given by the Builder. Any rectification costs due to inaccurate taking up of levels, set out and
plumbing work performed or undertaken by the Sub-Contractor which affect later trades will be paid by the
Sub-Contractor.
10. MATERIALS, LABOUR & CONSTRUCTIONAL PLANT
(a) The Sub-Contractor shall, unless this Agreement otherwise provides, supply at his own cost expense
everything necessary for the proper completion of the Sub-Contract Works and the proper performance of
his obligations under this Agreement.
(b) All tackle, gear, staging, scaffolding, ladders, hoists, lifts, and other equipment used in conjunction with
the Sub-Contract Works (“the Construction Plant”) shall comply with the requirements in relation thereto
of the relevant laws in operation in the State of Territory in which the Sub-Contract Works are being
carried out.
(c) The Sub-Contractor shall give to the Builder upon request full particulars of the make and place of
manufacture, source of supply, the performance capacities and such other information as the Builder
considers necessary in respect of any of the material, machinery or other equipment to be used in
connection with the Sub-Contract Works, and/or give the Builder reasonable written notice of his intention
to do so.
(d) The Sub-Contractor shall, unless this Agreement otherwise provides, supply at his own cost and expense
all craneage, hoisting, scaffolding, associated labour for loading, unloading, erection and dismantling for
the proper completion of the Sub-Contract Works and the proper performance of his obligations under
this Agreement.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 4 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
11. MATERIALS AND WORK
(a) Materials used in the Sub-Contract Works and standards of workmanship shall be in conformity with the
provisions in this Agreement and shall be of a kind which is suitable for its purpose and is consistent with
the nature and character of the Sub-Contract Works. Unless otherwise specified in this Agreement, any
materials to be incorporated in the Sub-Contract Works shall be new and, where applicable, shall be in
accordance with the relevant standard of the Standards Association of Australia.
(b) The Sub-Contractor shall, unless otherwise agreed, at his own cost, provide adequate storage and
protection for all materials so as to preserve their quality and fitness for the Sub-Contract Works.
12. ACCEPTANCE OF BASE WORK
(a) The Sub-Contractor shall not proceed to carry out his work over other work if in his opinion the previous
work is unsatisfactory or unsuitable, unless the Builder issues a written instruction overriding such
objection, and the Builder accepts responsibility for such work proceeding.
(b) Commencement of any work shall imply that the Sub-Contractor accepts the previous work and requires
no extra payments or special recompense, and such commencement shall render the Sub-Contractor
liable for all costs incurred by the Builder in making good any resultant defects, except where the SubContractor is of the opinion that the previous work is unsatisfactory or unsuitable and only proceeds with
his work in compliance with a written instruction received from the Builder.
13. CARE OF THE WORKS
(a) Until the Builder shall take over the Sub-Contract Works, the Sub-Contractor shall be solely liable for the
care and maintenance of all materials, Construction Plant and other things that are brought on to the site
by or on behalf of the Sub-Contractor or any of his Sub-Contractors for the purpose of carrying out the
work under this Agreement, or that are entrusted to him by the Builder for that purpose.
(b) The Sub-Contractor shall, at his own cost, make good to the satisfaction of the Builder any loss or
damage to the Sub-Contract Works resulting from any cause whatsoever when such making good is
necessary for the satisfactory completion of the Sub-Contract Works. Where any such loss or damage is
not caused by the negligence of the Sub-Contractor, his employees, professional consultants and agents,
such loss or damage shall be made good by the Sub-Contractor as a variation to this Contract and dealt
with pursuant to Clause 23 thereof.
(c) The Sub-Contractor shall notify the Builder when he damages other work.
(d) The Sub-Contractor shall provide adequate protections to prevent soiling and/or damage occurring to the
Sub-Contract Works or any other work adjacent to or in the vicinity of the Sub-Contract Works.
14. SITE CLEANING
The Sub-Contractor shall at his own cost and to the satisfaction of the Builder:
(a) During the duration of this Agreement at frequent intervals or as reasonably directed by the Builder, clean
up and remove the site all debris, rubbish etc. created by his own operations and the Sub-Contractor shall
keep all roads and footpaths clean and safe, and if necessary, hose the tyres on trucks before they leave
the Site.
(b) At completion of the Sub-contract Works thoroughly clean up and clear away from the Site all debris,
plant etc. and leave in a condition suitable for handing over to the Proprietor and/or as required by
following trades.
(c) Should the Sub-contractor fail to comply with this Clause and such failure continues after 24 hours from
the date of a written notice from the Builder requiring compliance, the Builder may attend to the clean up
and any costs created thereby shall become a debt to the Builder by the Sub-Contractor.
15. SITE ACCOMODATION
All lunch, change, messing and toilet accommodation and water will, if so stated in Item 7 of the Schedule, be
provided by the Builder. Space will be allocated for storage sheds and/or offices.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 5 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
16. TEMPORARY POWER
240V Temporary Power will be provided by the Builder for the Sub-Contractor’s use within a reasonable
distance of the Sub-Contract Works. The Sub-Contractor shall supply all necessary equipment to utilise
power from that point.
17. COMMENCEMENT AND COMPLETION
(a) The Sub-Contractor subject to the terms and conditions of this Agreement will execute and complete the
Works in a proper and workmanlike manner and to the reasonable satisfaction of the Builder and in
conformity with all the reasonable directions and requirements of the Builder and will commence and
complete the same on and by the dates stated in Item 8 of the Schedule subject always to the provision
hereinafter contained for extension of time for completion.
(b) Unless specifically instructed in writing by the Builder prior to commencement, the Sub-Contractor shall
not begin work on site until a fully signed and completed original of this Agreement, the Statutory and
Contract Compliance Form, the Subcontractor Work Health & Safety and Environmental Requirements,
Certificates of Currency for Insurances, proof of current and valid trade/building licence for the works to
be undertaken, and any required safety documents including Job Safety Analysis documentation are
returned to the Builder and are to the Builder’s satisfaction. The Sub-Contractor must ensure that safety
documentation, including Job Safety Analysis documents, are supplied to the Builder in a reasonable
timeframe for review preferably 2 weeks prior but no less than 7 days prior to commencement to ensure
safety issues are addressed prior to commencing on site.
(c) If the Sub-Contractor has not properly executed and returned the issued Sub-Contract within five (5)
working days or advised of any matter to be resolved in relation to the Sub-Contract in writing to the
Builder in the five (5) working days, then the Sub-Contract issued to the Sub-Contractor by the Builder
shall evidence the contract between the parties. The Sub-Contractor is required to return the SubContract to the Builder as a matter of urgency in all cases to ensure compliance with subclause 17(b).
18. EXTENSIONS OF TIME
(a) Where the Sub-Contractor is delayed in the execution of the Sub-Contractor Works by any breach, act or
omission by the Builder, its employees or agents or by any other cause permissible under the SubContract at the Builder’s discretion only (except a cause arising out of any breach of the provisions of the
Agreement or any other act or omission on his own part or on the part of his employees, agents or such
contractor or their employees or agents) and that delay might reasonably be expected to result in a delay
in the execution of the Sub-Contract Works, the Sub-Contractor may claim an extension of time for
completion of the Sub-Contract Works, by giving to the Builder no later than seven (7) days after the
cause of delay arose a written claim for an extension of time for completion of the Sub-Contract Works
together with a statement of the facts on which the claim is based and showing the impact which the
delaying event has on the critical path for carrying out and completion of the Subcontract Works. The
Sub-Contractor is to provide a written statement of the facts on which the claim is based and must include
the period of time claimed by the Sub-Contractor.
(b) An extension of time claim whether approved or not approved does not entitle the Sub-Contractor to any
claim for costs, unless specifically approved by the Builder in writing at its sole discretion.
(c) The Sub-contractor is to take all reasonable and practicable actions to mitigate a delay causing event,
including advising the Builder as soon as practicable of the delay.
(d) The Builder at its own discretion shall determine whether the cause of the delay is such as to justify or
reject an extension of time for the completion of the Sub-Contract works and shall advise the SubContractor of their determination in writing as soon as practicable after the decision has been reached.
(e) No claim, for loss or expense incurred by the Sub-Contractor by reason of or as a result of or arising from
the exercise by the Builder of the power to grant or allow any extension of time under any of the
provisions of this clause shall be allowed by the Builder unless the need for the extension of time was due
to any breach of the provisions of this Agreement or out of any other act or omission on the part of the
Builder, their employees or agents and only where the Sub-Contractor in giving notice to the Builder
pursuant to sub-clause (a) of this clause has stated his intention to make a claim under this sub-clause.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 6 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
19. LOSS DUE TO DELAY
(a) The Sub-Contractor shall execute the Sub-Contract Works at a rate of progress and in a manner strictly in
accordance with this Agreement and shall, subject to the terms hereof complete the Sub-Contract Works
within a period agreed. In the event of non-completion of the Sub-Contract Works within the period or by
the date agreed, the Sub-Contractor shall pay or allow to the Builder by way of liquidated and preascertained damages and not as or in the nature of a penalty the sum specified in Item 12 of the
Schedule for every week and a proportionate part of that sum for every part of a week that shall elapse
after the expiration of the said period or after the expiration of any extended period that may be allowed
under the terms of this Agreement until completion of the Sub-Contract Works.
20. AWARDS AND WORKING HOURS
(a) The Sub-Contractor shall not carry out any part of the Sub-Contract Works outside statutory working
hours without the prior written consent to the Builder or unless the Builder considers it necessary in order
to maintain the construction schedule and requests the Sub-Contractor to do so. The costs of all
overtime shall be borne by the Sub-Contractor except where the Builder agrees in writing to pay for the
same.
(b) The Sub-Contractor shall be responsible for the payment of all wages and costs associated with the SubContract Works required to be paid under all relevant awards and agreements from time to time prevailing
including any additional cost as a result of special site agreements, zone or disability allowances.
(c) The Sub-Contractor must ensure that all its obligations regarding Workers Compensation Insurance
(Workcover), Superannuation, Long Service Leave (Long Service Leave Board) and Redundancy are met
at all times throughout the contract, and the payments are made on behalf of all employees at the
required time. The Sub-Contractor may be required to provide evidence of compliance of this
requirement prior to commencement on site and at any time as requested by Sarah Constructions. If the
Sub-Contractor fails to provide such evidence Sarah Constructions may at its discretion suspend
payments owing to the Sub-Contractor until satisfactory evidence is supplied.
21. SUPERANNUATION AND LONG SERVICE LEAVE
The Sub-Contractor shall ensure all labour is covered by an appropriate Superannuation Scheme and that
contributions to an appropriate Long Service Leave Scheme are paid and remain current.
22. DEFECTS
(a) The Sub-Contractor shall maintain the Works until Practical Completion. Any defects in the Sub-Contract
Works which become apparent during the Defects Liability Period and which are due to any cause,
including design, workmanship or materials for which the Sub-Contractor is responsible shall be rectified
by the Sub-Contractor when directed to do so by the Builder who, in that direction, shall state in what
respect the Sub-Contract Works are defective and the date by which rectification shall be completed, but
no such direction shall be given by the Builder later than twenty-eight (28) days after the expiration of that
Defects Liability Period.
(b) If any omission or defect is not rectified within the time stipulated in the direction given by the Builder, the
Builder may rectify the omission of defect at the Sub-Contractors expense but without prejudice to any
other rights that the Builder may have against the Sub-Contractor. In respect of that omission or defect
and the cost incurred by the Builder in so rectifying the omission or defect, this shall be a debt due from
the Sub-Contractor to the Builder which may be recovered by the Builder, or after being invoiced by the
Builder, may be deducted by the Builder from any monies which may then be or thereafter become
payable to the Sub-Contractor by the Builder, including any retention monies then held by the Builder.
Notwithstanding the provisions of this sub-clause, the Sub-Contractor shall not be responsible for the effects of
fair wear and tear during the Defects Liability Period.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
Page 7 of 15
Revision: 3
Current Issue Date: 11/11/2013
Date For Review: 11/11/2014
Sarah Constructions Pty Ltd (Sarah) Conditions
of Sub-Contract Agreement (T-20)
23. VARIATIONS OR ADDITIONAL WORKS
(a) If, at any time during this Agreement, the Builder determines that the form, quality or quantity of the work
under this Agreement should be varied, the Builder may issue a variation direction or order to the SubContractor to do all or any one or more of the following things –
(i)
Increase, decrease or omit any part of the work under this Agreement;
(ii)
Change the character or quality of any material or work;
(iii) Change the levels, lines, positions or dimensions, of any part of the work under this Agreement;
(iv) Execute additional work.
(v) Execute an instruction to demolish or remove material or work from site
(b) The Sub-Contractor shall submit detailed quotations for all variations to the Builder either prior where time
permits or where more immediate action is required within seven (7) days of the receipt of a variation
request by the Builder. If the Sub-Contractor fails to do so or if the Builder does not agree with the SubContractor’s Quotation, the Builder shall be entitled as per sub clause 23(e) at its sole discretion to
calculate the price on the Sub-Contractor’s behalf and this price shall be binding on the Sub-Contractor.
With the price assessment to be accompanied by a comprehensive take-off giving full details to the SubContractor.
(c) All Variation quotations provided to the Builder by the Sub-Contractor will also include specific details on
how (if at all) the variation will affect the Sub-Contractor’s program.
(d) No variation of the Sub-contract Works shall be made or claimed by the Sub-Contractor without a written
Variation order being issued to the Sub-contractor by the Builder.
(e) The Builder when assessing the price of a variation claim will at it’s sole discretion, value the variation
work by using one or more of the following means:
(i)
By prior agreement on the quoted price submitted by the Sub-Contractor with all costs of the
variation to be substantiated in writing, including but not limited to labour, material, machinery and
hire costs
(ii)
By applying the agreed rates or prices in the Sub-Contract or by applying the quoted rates used by
the Sub-Contractor in their tender for labour, material and hire equipment
(iii) By applying reasonable market rates or prices to the labour, materials and equipment hire employed
in completing the variation
(f)
In each case, the Builder will apply the agreed contract margin and overhead for variations, or where that
has not been agreed, the Builder will apply a reasonable amount for overhead and profit
(g) Where time permits, the Builder may give the Sub-contractor a direction to provide a price for a proposed
variation to the sub-contract works. The sub-contractor shall provide the Builder with a detailed written
quotation within seven (7) working days of receiving the direction from the Builder. The Builder will assess
the proposed variation valuation using sub clause 23(e).
This Sub-Contractor quotation shall contain the following:
(i)
a comprehensive take-off providing full details of the variation works
(ii)
a full breakdown of all costs eg labour, machinery hire, material.
(iii) copies of quotations from any sub-subcontractors or suppliers
(iv) reference to the effect if any to the construction program
No costs or claims will become payable by the Builder to the Sub-contractor as a result of the proposed
variation request unless the Builder issues a written direction to proceed with the Variation works.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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(h) Variation claims are to be submitted with the next progress claim proceeding the completion of variation
works (or as specified by the written Variation order) and in accordance with item 9 of The Schedule –
Time for Payment
(i)
Variations or variation claims not correctly submitted in the times frames required by clause 23 or that are
not submitted to the Builder in the next progress claim as specified by the Sub-Contract may be barred by
the Builder at the Builders sole discretion.
24. PROGRESS PAYMENTS
(a) Subject to the proper performance by the Sub-Contractor of the Sub-Contract and subclause 24(b), the
Builder shall pay the Lump Sum Contract Price to the Sub-Contractor by means of progressive interim
payments until the Builder’s full liability is discharged. Such interim payments may be claimed by the
Sub-Contractor, with adequate details and such related information as the Builder may require, for work
properly executed, at the intervals and / or times stated in Item 9 of the Schedule.
(b) It is a precondition to any payment becoming due under this Sub-Contract that the Sub-Contractor shall
have returned to the Builder’s satisfaction a compliant fully signed and completed original of the SubContract including all contract documents as required to the Builder, including but not limited to insurance
certificates, evidence of license(s), WHS&E compliance, security and any other required documents as
specified from time to time. No payment shall be due under or in connection with this Sub-contract until
that has occurred and all insurances, licenses, security and contractual terms are complied with.
(c) The Builder shall pay to the Sub-Contractor within the time stated in Item 9 of the Schedule, subject to
retention as hereinafter defined, the amount of the claim or such part thereof as represents the value of
work detailed therein and executed to the Builder’s reasonable satisfaction.
(d) The payment of any progressive interim payment does not constitute any acknowledgement by the
Builder that the Sub-Contractor is not in default of any of the provisions hereof, or that the work, forming
the basis of the claim upon which the progress payment has been made, complies with the provisions
hereof or at all, nor does it condone any default. Payments made to the Sub-Contractor by the Builder,
other than the Final payment, shall be payment on account only.
25. PRACTICAL COMPLETION
(a) Upon being issued a Certificate of Practical Completion pursuant to the provisions of the Head Contract,
the Builder shall inform the Sub-Contractor as soon as practicable of the date stated on such Certificate
of Practical Completion, which date shall, for the purpose of this Contract be known as the Date of
Practical Completion of the Sub-Contract Works.
(b) The Sub-contractor shall within 14 days after the notification of the Date of Practical Completion of the
Sub-Contract Works submit to the Builder by way of a penultimate progress claim all monies then payable
in terms of this Agreement including variations in pursuance of Clause 23.
(c) The Sub-contractor shall have no claim against the Builder on any account whatsoever in relation to the
performance and execution of the Sub-Contract Works, if he fails to furnish to the Builder the penultimate
progress claim as provided in sub-clause (b) hereof.
(d) The Sub-Contract will not be practically complete, until the Sub-Contractor supplies to the Builder’s
satisfaction, all required documents as per the works specifications including but not limited to manuals,
COC’s, Form 2’s, Fire Certificates, warranties, subcontractor and supplier guarantees. The Builder must
also be satisfied with the commissioning of the Sub-Contract works and inductions as required for the
Principal, and that any other reasonable requests made by the Builder in relation to practical completion
of the Sub-Contract works have been satisfied.
26. RETENTION SUMS AND SECURITY
(a) From each interim payment referred to in Clause 24 hereof, the Builder may retain ten percent of monies
becoming due thereunder until the sum retained is equal to five percent of the Lump Sum Contract Price.
One half of the monies as retained will be released on the date of Practical Completion specified in the
Certificate of Practical Completion issued pursuant to the Head Contract and the other half will be
released at the expiration of the Defects Liability Period or upon the final release of monies held pursuant
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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to any defects liability provision under the terms of the Head Contract, whichever is the latter. The Builder
shall release the retention fourteen (14) days from the receipt of a written request from the SubContractor in each instance.
(b) Upon agreement with the Builder and at the time of return of signed and completed Sub-Contract to the
Builder, the Sub-Contractor may provide Security other than cash in lieu of retention, generally in the form
of unconditional and non-date expiry bank guarantees. The security shall be as required by the contract
with the general requirement being one for 2.50% of the Sub-Contract sum for practical completion and
the other for same 2.50% for defects liability period. The release of the supplied security shall be as per
subclause 26(a).
(c) Security supplied for claims for offsite plant and materials, generally in the form of unconditional and nondate expiry bank guarantees must be submitted by the Sub-Contractor to the Builder prior to any payment
being approved or made to the Sub-Contractor for offsite plant and materials claims. The acceptance of
security and payment for offsite plant and materials claims will be at the sole discretion of the Builder.
27. DEFAULT
(a) An act of default by the Sub-Contractor will occur, if the Sub-Contractor is or becomes bankrupt or
insolvent or enters into any composition or arrangement with its creditors or being a company has a
winding-up order made against it or (except for the purposes of reconstruction) passes a resolution for
winding-up or is party to the appointment of or has an Official Manager or Receiver appointed for the
whole or any part of its property or undertaking of enters into any composition or Scheme or
Arrangement; or
(b) If the Sub-Contractor commits any material breach of the Sub-Contract including:
(i)
wholly suspends work on the Sub-Contract Works before completion (without a lawful reason being
advised to the Builder seven (7) days prior in writing), or
(ii)
fails to proceed with the Sub-Contract Works with reasonable diligence or in a competent manner, or
(iii) fails to comply in the timeframe specified with a notice from the Builder requiring him to remove and
replace defective work or improper materials, or
(iv) Fails to observe and perform the obligations on its part to be observed and performed after seven (7)
days of a notice in writing given by the Builder requiring the Sub-Contractor to remedy such failure,
or
(v) Fails to proceed with the Works in accordance with the Builder’s program, or
(vi) Contravenes accepted Building Industry practice or any Building Industry agreement, or
(vii) Effecting a lien over the works (without a lawful reason being advised to the Builder seven (7) days
prior in writing) or effecting a lien prior to the dispute resolution process documented in clause 33
being attempted in good faith,
(viii) Fails to proceed with the works in a safe and competent manner in accordance with the
Subcontractor Work Health and Safety and Environmental Requirements document of the subcontract or the relevant Work Health and Safety Acts and laws, such that the Builder determines at
its sole discretion that the Sub-Contractor poses an unacceptable safety risk to itself or other
persons working on site
(ix) Commits any other breach of a clause in the Subcontract and fails to show cause in writing to the
satisfaction of the Builder within five (5) days of being requested by the Builder to do so, regarding
the breach, including but not limited to:
-
Failure to provide prior to commencement and maintain current certificate(s) of currency for
insurances as required by the Sub-Contract
-
Failure by the Sub-Contractor to produce evidence of payment of secondary subcontractors and
employees of the Sub-Contractor as required by the Sub-Contract
-
Sub-Contracts to and/or performs work in the Sub-Contract for which the Sub-Contractor is not
legally licensed for and for which the Builder is not advised
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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Makes false statements and/or declarations regarding insurances, licensing, and payments to
secondary subcontractors and employees to the Builder
-
Fails to supply security to the Builder in the time specified by the Builder as required by the SubContract
-
Fails to act in accordance with and comply with direction(s) from the Builder, in the timeframes
specified, with regards to the WHS&E conditions of the Sub-Contract documents
-
Fails to use new and appropriate materials in the Sub-Contract Works as required
-
Fails after direction from the Builder to remove workmen from the site, as soon as practicable
-
Sub-lets or assigns whole or part of the Sub-Contract to another party without the written
approval of the Builder, including the assignment of Sub-Contract payments to another party
-
Fails to comply with any other clause contained in this Sub-Contract that materially affects the
performance of the Sub-Contract and the completion of the Head Contract on time.
THEN the Builder may at any time, without prejudice to any other rights or remedies that the Builder may
have, terminate this Sub-Contract forthwith, either in whole or in part by written notice to the SubContractor.
(c) In the event of this Sub-Contract being terminated pursuant to this clause the rights and liabilities of the
parties shall be as follows:
(i)
The Builder may engage another Sub-Contractor to carry out and complete the Subcontract Works.
(ii)
The Sub-Contractor shall be entitled to payment of the value of the work completed at the date of
default less all amounts paid to that date and less all the costs and expenses incurred by the Builder
and all damages caused to the Builder by the determination of this Sub-Contract and any other
liability of the Sub-Contractor to the Builder under this Sub-Contract, all of which costs and liabilities
shall be assessed by the Builder at its own discretion and the Balance, if any then remaining shall
thereupon become a debt owing to the Sub-Contractor.
(iii) In the event that any sum due to the Builder exceeds the amount remaining payable to the SubContractor, the Builder shall be entitled to recover the balance from the Subcontractor.
(iv) The Sub-Contractor shall forthwith vacate the Site.
(v) The Sub-Contractor shall not remove from the Site, or authorize any other persons to remove any
materials, plant, equipment or goods unless approval is granted in writing by the Builder to remove
such materials, plant, equipment or goods and if such approval is granted the Sub-Contractor shall
remove such materials, plant, equipment or goods only at the time(s) nominated by the Builder.
(vi) The Builder may, after notifying the Sub-Contractor in writing sell any tools, equipment, materials and
goods left on site by the subcontractor and use the proceeds, less any cost arising from selling or
handling, to offset any amount left owing by the Sub-Contractor to the Builder as outlined under this
clause.
(vii) The Sub-Contractor shall not enter the Site for any reason whatsoever, except as outlined elsewhere
in this clause, without the permission of the Builder.
28. NOTIFICATION OF CLAIMS
The Builder shall not be liable upon any claim by the Sub-Contractor in respect of any matter arising out of
Agreement unless the claim together with full particulars thereof, is lodged in writing with the Builder not later
than twenty-one (21) days after the date of the occurrence of the events of circumstances on which the claim
is based or written notice of intention to make the claim specifying the nature of the claim is lodged with the
Builder within that time and the claim, together with full particulars thereof, is lodged in writing with the Builder
before the issue of the Final Certificate in respect of the Sub-Contract Works.
29. TERMINATION OF HEAD CONTRACT
(a) Should the Head Contract or the Builder’s employment thereunder be determined at any stage of
execution and for any reason whatsoever, THEN the Builder by notice in writing to the Sub-Contractor
may determine this Agreement. The Sub-Contractor shall not be entitled to claim on account of such
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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determination any sum in respect of loss of profit on that part of the Sub-Contract Works not executed at
the date of the said notice.
(b) He shall be entitled to claim and recover from the Builder such sum as may be agreed or fixed by
arbitration in respect of work carried out in respect of the Sub-Contract Works as at the date of
determination of this Agreement, and may also recover any expenses already incurred and relating to or
preparing for that part of the work under this Agreement not executed at the date of the said notice,
provided that the same is not otherwise recoverable or able to be used by the Sub-Contractor in the
ordinary course of his business.
30. RIGHT OF THE BUILDER TO RECOVER MONIES
Without limiting the Builder’s rights under any provision of this Agreement, any debt due from the SubContractor to the Builder under or by virtue of any provision of this Agreement may be deducted by the Builder
from any monies which may be or thereafter become payable to the Sub-Contractor by the Builder, including
any retention monies then held by the Builder. Nothing in this clause shall affect the right of the Builder to
recover from the Sub-Contractor the whole of the debt or any balance that remains owing after deduction.
31. INDEMNITY
The Sub-Contractor shall indemnify the Builder from and against all and any actions, proceedings, claims,
demands, losses, damage, penalties, costs and expenses which the Builder may incur or become liable for in
respect of or arising out of:
(a) Any claim or demand made against the Builder under the Head Contract arising from or contributed to by
a breach of this Sub-Contract or the negligence or other default of the Sub-Contractor or any of its
employees, contractors or agents; and
(b) Any claim or demand made against the Builder by an employee, contractor or agent of the SubContractor in respect in respect of the carrying out of the Works; and
(c) Loss, damage or injury to any property or persons caused or contributed to in any way by any act or
default of the Sub-Contractor or its employees, contractors or agents, or any person on the site by lawful
license of the Sub-Contractor.
(d) The Sub-Contractor shall indemnify the Builder and hold the Builder harmless from and against all losses,
liabilities, claims and expenses which may be asserted against or suffered or incurred by the Builder as a
result of or arising out of whether directly or indirectly any breach, act or omission by the Sub-Contractor
in connection with the performance of the Subcontract Works
32. SUB-LETTING
The Sub-Contractor shall not assign this Agreement or sub-let any portion of the same without the written
consent of the Builder. The Sub-Contractor shall not assign any of its claims for payment to any other party,
that are to be made to the Sub-Contractor under the Sub-Contract, without the written consent of the Builder.
No debt assignment arrangements entered into by the Sub-Contractor will be recognized by the Builder,
unless agreed in writing. .Where it is agreed in writing by the Builder to sub-let any portion of the Sub-Contract
Works, the Sub-Contractor shall not be relieved of his responsibilities under this Agreement for carrying out
any assigned or sub-let portion of the Sub-Contract Works.
33. DISPUTE RESOLUTION
(a) Notwithstanding the succeeding provisions of this clause, if the works have not been completed the SubContractor will at all times (subject as otherwise provided for in this Contract) continue to execute the
Works and perform its obligations under the Sub-Contract.
(b) If a dispute or difference (hereafter called a “Dispute”) between the Builder and the Sub-Contractor arises
in connection with the Sub-Contract or the subject matter thereof, either party may deliver by hand or
send by certified mail to the other party a notice of dispute in writing adequately identifying and providing
detail of the dispute.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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(c) Within fourteen days (14) after service of a notice pursuant to clause 33(b) representatives of the parties
who have authority to resolve a dispute or difference, must meet at least once and undertake genuine
and good faith negotiations:
(i)
With a view to resolving the dispute or difference; and
(ii)
If they are unable to resolve the dispute or difference attempt to agree to take the dispute to
mediation or arbitration and if the dispute or difference is referred to mediation or arbitration, the
parties will agree upon a mediator or arbitrator that is recommended by the Australian Institute of
Arbitrators.
(d) It is hereby expressly agreed that no legal representation will be made by either party during the
mediation or arbitration process where the value in dispute is less than $50,000.00.
(e) Except as required by law, or as necessary to comply with any law, unless and until the dispute is
referred to litigation, each party must keep the dispute or difference confidential and must not disclose,
without the written consent of the other party, to any person or entity, the existence of the dispute or
difference or any aspect of or any matter incidental to the dispute or difference, including the fact and/or
substance of any negotiations and/or arbitration in relation to the dispute or difference.
(f)
The timeframes for dispute resolution noted in clauses 33(a) - 33(e) may be altered as required by written
notice from the Builder to the Sub-Contractor where they are required to be consistent with the Head
Contract.
(g) This clause 33 will survive the termination of the Sub-Contract.
34. SUPERSEDES PREVIOUS OFFER
The Sub-Contract Agreement supersedes and/or cancels all previous letters, offers, quotations and
negotiations sent or received between the Sub-Contractor and the Builder, except as are agreed and included
in or appended to this document.
35. RELATIONSHIP BETWEEN THE PARTIES
This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the
Builder and the Sub-Contractor and neither party may represent such. Under no circumstances may the SubContractor obligate or bind the Builder to any agreements, arrangements, contracts or understandings or
represent that it has such authority.
36. WAIVER
No waiver by any party of any default in the strict and literal performance of or compliance with any provision
condition or requirement herein shall be deemed to be a waiver of the strict and literal performance of and
compliance with any other provision, condition or requirement nor to be a waiver of or in any manner release
any other party from strict compliance with any provision condition or requirement in the future nor shall any
delay or omission by any party to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
37. SEVERABILITY
The covenants, undertakings and conditions and each and every part thereof contained in this Agreement
shall be severable and shall be so construed as not to infringe the law of Australia or any Australian state, but
if any such covenant, undertaking or condition shall read down to such extent as may be reasonable in all the
circumstances so as to give it a valid operation of a partial character and in the event that the informing
covenant, undertaking or condition cannot be so read down it shall be deemed void and severable.
38. REMOVAL OF WORKMEN
The builder may require removal from the Works and/or the Site of any person employed or engaged by the
Sub-Contractor (including employees of any subcontractor) who, in the opinion of the Builder, is incompetent,
negligent or misconducts themselves or is not conductive to harmonious industrial relations. The SubContractor shall, when directed to be the Builder, remove or have removed from the Site or any activity
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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connected with the work under the Sub-Contract within such time as the Builder directs the Sub-Contractor to
remove, or have removed such persons.
39. SECURITY OF PAYMENT
(a) The Reference date for a payment claim under the Sub-Contract for the purposes of the Building and
Construction Industry Security of Payment Act 2009) (SA shall be the last day of the month in which the
work is performed.
(b) The Sub-Contractor shall advise the Builder by written notice within 24 hours of becoming aware of a
security of payment claim being made under the act by any of its (sub)subcontractors in relation to the
Sub-Contract Works. The notice must include a copy of the correspondence received.
(c) The Sub-Contractor shall advise the Builder by written notice within 24 hours of becoming aware of a
suspension notice being issued by one of its (sub) subcontractors to the Sub-Contractor under the
Security of Payment Act 2009 (SA) in relation to the Sub-Contract Works. The notice must include a copy
of the correspondence received.
(d) The Sub-Contractor shall advise the Builder by written notice within 24 hours of being issued a worker’s
lien by one of its (sub) subcontractors in relation to the Sub-Contract works.
(e) The Sub-Contractor shall indemnify the Builder for any and all costs, claims and legal costs incurred or
claimed against the Builder as a result of a suspension of works by a (sub) subcontractor of the SubContractor in relation to the Sub-Contract works under the Security of Payment Act 2009 (SA).
(f)
Should the Builder or the Head Contract Principal in order to progress the works make payment(s)
directly to a (sub) Subcontractor of the Sub-Contractor in order to resolve a suspension of the works or to
have a workers lien released, the Sub-Contractor will indemnify the Builder or the Head Contract Principal
for any and all costs, claims and legal costs incurred or claimed against the Builder or the Head Contract
Principal in resolving the suspension or workers lien.
(g) Any payment made by the Builder to the Sub-Contractor or its (sub) subcontractors as a result of a
payment claim under the Security of Payments Act 2009 (SA) or through adjudication or a direction given
by a court with jurisdiction relating to the Sub-Contract Works, shall be on account only and shall in no
way be taken to be a certified payment for works or services under the Sub-Contract unless specifically
stated by the Builder.
(h) If the Sub-Contractor suspends the Sub-Contract works under the rights of the Security of Payments Act
2009 (SA), the Sub-Contractor shall not have the date for practical completion of the works extended, nor
will it entitle it to any claims or damages for any associated costs for the suspension. The Builder at its
sole discretion may direct the Sub-Contractor to omit the whole or part of the Sub-Contract Works
suspended, with the Builder entitled to engage a third party to complete the Sub-Contract works.
40. TERMINATION FOR CONVENIENCE
Sarah may terminate this subcontract at any time for its sole convenience, with the Sub-Contractor to be paid
for its works or services to that time. Reasonable and justifiable costs incurred to the time of termination shall
be paid upon documented evidence of costs incurred to that time being presented in the final progress claim.
Claims for damages, loss of profit and any other consequential losses shall not be accepted as a valid claim,
only the reasonable costs incurred in performing the works to the date of termination will be assessed by
Sarah and paid at its sole discretion only. The Sub-Contractor upon termination shall demobilize from site in
an orderly manner and in the timeframe specified by the Builder. The Sub-Contractor shall provide to the
Builder all project materials, approvals and any other associated documents necessary to complete the works.
The Builder will be entitled to offset from any claim for payment submitted by the Sub-Contractor at termination
any claims against the Sub-Contractor by the Builder as allowed for in the Sub-Contract, particularly in relation
to clause 30. The Builder may at its sole discretion appoint a third party to complete the unfinished works.
Upon payment by the Builder to the Sub-Contractor following the termination of the Sub-Contract, the SubContract Works and all associated items necessary to complete the Sub-Contract Works shall become the
sole property of the Builder.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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41. LICENSING
The Sub-Contractor (including secondary subcontractors engaged by the Sub-Contractor) shall hold an
appropriate and current license for the works to be undertaken as specified in the Sub-Contract. Should the
Builder become aware that the Sub-Contractor does not hold a valid and current trade/building license for the
Sub-Contract work to be undertaken. The Builder has the right to suspend the whole or that part of the works
that the Sub-Contractor is not qualified to perform and take that part of the works out of the Sub-Contract. The
Builder may also at its discretion terminate the contract as an act of default under clause 27. Any costs
associated with the termination of the contract and/or take out of these works and subsequent completion by
the Builder or another Sub-contractor is to be borne by the Sub-Contractor, with any costs to be certified as a
debt to the Builder by the Sub-Contractor.
42. TERMINATION BY FRUSTRATION
Should the Sub-contract be frustrated at any stage of execution and for any reason whatsoever, THEN the
Builder by notice in writing to the Sub-Contractor may terminate this Agreement by Frustration. The SubContractor shall not be entitled to claim on account of such termination any sum in respect of loss of profit on
that part of the Sub-Contract Works not executed at the date of the said notice. He shall be entitled to claim
and recover from the Builder such sum as may be agreed or fixed by arbitration in respect of work carried out
in respect of the Sub-Contract Works as at the date of termination of this Agreement, and may also recover
any expenses already incurred and relating to or preparing for that part of the work under this Agreement not
executed at the date of the said notice, provided that the same is not otherwise recoverable or able to be used
by the Sub-Contractor in the ordinary course of his business. Should the frustration of the Sub-Contract be
caused by the Head Contract, then the sum that the Sub-Contractor will be entitled to, will be limited by the
amount to which the Head Contract provides compensation to the Builder for the frustration.
43. LATENT CONDITIONS
(a) The Sub-Contractor warrants, any Archaeological finds made by the Sub-Contractor in the course of
completing the Sub-Contract, shall remain the property of the Builder. Upon discovery, the SubContractor will inform the Builder immediately, cease work as soon as practicable, secure the site,
maintain confidentiality, and request written direction from the Builder on how to complete the works
around the discovery site.
(b) Should the Sub-Contractor encounter what it believes to be a latent condition, being a physical condition
on site and its near surrounds that will materially delay the completion of the works, and a condition that a
competent and experienced Sub-contractor could not have reasonably anticipated at time of tender
having inspected site, made reasonable enquiries, reviewed the drawings and the specification for the
works and submitted a tender for the completion of the works for a fixed and agreed price taking into
account all risks that could reasonably be anticipated, and any other requirement as described in clause
four. The Sub-Contractor shall advise the Builder immediately and as soon as practicable but not later
than five (5) working days after first becoming aware of the matter, provide written notice regarding the
suspected latent condition to the Builder detailing all relevant facts including costs and time associated
with dealing with the suspected latent condition. The Builder shall assess the notice and provide direction
to the Sub-Contractor as to what action is to be taken. The Builder at its sole discretion shall determine if
the notice does relate to a latent condition, and may provide direction or a variation as it deems
necessary.
44. TESTING
As required from time to time by the Builder, the Sub-Contractor will at their cost, conduct appropriate testing
of the whole or parts of the Sub-contract works to ensure conformity with the specifications of the project. Any
rectification work required to be made to the Sub-Contract works discovered from the testing will be borne by
the Sub-Contractor in conforming with the specifications of the project. The Builder may also direct testing of
the Sub-Contract works and where the works do not conform to the specifications of the project, the SubContractor shall rectify the works at their own cost so that it does meet the project specification.
Contract No.: SC2-XXXX
Sub-Contractor Acceptance (initials) ..................
Sarah Acceptance (initials) ..................
T-20 – Conditions of Sub-Contract Agreement
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