GENERAL TERMS

1. VENDOR ENGAGEMENT

1.1 Formation of Agreement
This Agreement:
(a) is made between NPM and the Vendor; and
(b) comprises the terms and conditions on which the Vendor agrees to provide the Works as set out in any Purchase Order issued by NPM to the Vendor from time to time; and
(c) will be deemed to have been accepted by the Vendor as at the date on which the Vendor completes and submits the Contractor Account Application to NPM; and
(d) commences on the date that the Contractor Account Application is completed and submitted by the Vendor to NPM (Commencement Date).

1.2 Quotation
(a) On and from the Commencement Date, NPM may request that the Vendor provide NPM with a quotation in relation to the Works.
(b) If NPM requests that the Vendor provide NPM with a quotation, the Vendor must provide NPM with a quotation which includes, but is not limited to:
(i) stock availability (including quantity available);
(ii) lead-times;
(iii) order and delivery date and information;
(iv) material supply stock confirmation;
(v) wholesale pricelist per unit or retail pricelist per unit;
(vi) assembly and placement cost;
(vii) removal of rubbish and packaging; and
(viii) any other information requested by NPM,
in relation to the Works to be provided by the Vendor to NPM.
(c) A quotation issued by the Vendor to NPM will be valid for 60 days from the date of issue.
(d) The Vendor agrees to immediately notify NPM in the event that there is a variation to any of the information set out in clause 1.2(b).

1.3 Pricing Information
(a) If requested by NPM, the Vendor must, within 5 Business Days of such request, provide NPM with:
(i) the wholesale pricelist per unit and retail pricelist per unit in respect to the Works; or
(ii) the percentage by which the wholesale price per unit can be increased to calculate the retail price per unit in respect to the Works; or
(iii) the percentage by which the retail price per unit can be decreased to calculate the wholesale price per unit in respect to the Works.
(b) The information referred to in clause 1.3(a) as provided by the Vendor to NPM will be valid for 1 year from the date on which it is provided to NPM.

1.4 Purchase Order
(a) If NPM is satisfied with the quotation provided by the Vendor, NPM will provide the Vendor with a Purchase Order.
(b) In the event that the Vendor cannot perform the Works set out in a Purchase Order, it is the sole responsibility of the Vendor to notify NPM in writing as to a non-acceptance of the Purchase Order within 24 hours of receiving the Purchase Order.

1.5 Tax Invoice
Once the Vendor has completed part or all of the Works described in the Purchase Order, the Vendor must upload its tax invoice via the Vendor Portal. The Tax Invoice must:
(a) set out the Works provided by the Vendor to NPM;
(b) set out the Purchase Order Number;
(c) if applicable:
(i) enclose any relevant delivery docket(s);
(ii) enclose a relevant statement of account; and
(iii) is accompanied by relevant documents and/or information.

1.6 Acceptance or Rejection of Tax Invoice
(a) Upon NPM receiving a Tax Invoice which complies with clause 1.5, NPM will provide the Vendor with written notice either accepting or declining the Tax Invoice.
(b) In the absence of NPM providing the Vendor with written notice in accordance with clause 1.6(a) within 10 Business Days (or such longer period as determined by NPM) the Tax Invoice will be taken as being declined by NPM.
(c) If the Tax Invoice does not comply with clause 1.5, NPM will not be required to comply with clause 1.6(a) until such time as the Vendor provides NPM with a new Tax Invoice which complies with clause 1.5.

1.7 Completion Date
The Vendor must complete the Works on or before the Completion Date.

 

 

2. PARTIES OBLIGATIONS, WARRANTIES AND ACKNOWLEDGMENTS
2.1 NPM agrees to the obligations set out in Schedule 1A.
2.2 The Vendor agrees to the obligations set out in Schedule 1B.
2.3 The Vendor provides that warranties set out in Schedule 1C.
2.4 The Vendor agrees to, and acknowledges, the site conditions set out in Schedule 1D.

 

3. PROGRESS OF WORKS

3.1 Variation to Works
(a) A party must immediately notify the other if the Works require variation or cannot be performed for whatever reason on or before the Completion Date.
(b) If a variation to the Works is required, the Vendor must not proceed with the Works unless:
(i) the party requiring the variation provides the other with written notice by email particularising the variation to the Works, including but not limited to, suitable alternatives and additional costs and expenses for the satisfactory delivery or performance of the Works by the Completion Date (Varied Works); and
(ii) NPM has provided the Vendor with a revised Purchase Order that includes the Varied Works.

3.2 Additional Works
(a) The Vendor agrees to request the written consent of NPM in relation to any Additional Works.
(b) If the Vendor has not received a revised Purchase Order from NPM in respect to Additional Works, the Vendor will incur any cost, expense or liability in relation to the Additional Works and NPM will not be liable to make payment, compensate or reimburse the Vendor in respect to such Additional Works, unless otherwise agreed between the parties.

3.3 Additional Charges
(a) The Vendor acknowledges and agrees that:
(i) it will be liable for, and must attend to payment of, all Additional Charges;
(ii) NPM will not be liable for all Addition Charges arising after the Tax Invoice has been provided by the Vendor to NPM;
(iii) where NPM incurs any costs or expenses in relation to any rubbish removal and assembly resulting from the provision of Works, NPM will charge the Vendor, and the Vendor will be required to pay NPM:
(A) $110.00 per hour for rubbish removal and disposal fees associated with the Works; and
(B) $80.00 per hour for assembly of any items associated with the Works.

(b) The Vendor acknowledges and agrees that any cost, expense or liability incurred by NPM in relation to clause 3.3(a)(iii) will be:
(i) a debt due and payable by the Vendor to NPM; and
(ii) capable of being set off against any outstanding payment due to the Vendor by NPM or otherwise claimed by the Vendor from NPM.

3.4 Suspension of Works
(a) NPM may at any time and for its own convenience suspend the whole or any part of the Works by giving written notice to the Vendor and the Vendor must not otherwise suspend the works.
(b) If NPM suspends the whole or any part of the Works in accordance with clause 3.4(a), the Vendor will not be entitled to:
(i) any payment in relation to the suspended Works;
(ii) an adjustment on the amount payable by NPM to the Vendor; or
(iii) claim any other payment by reason of any delay, disruption, suspension or interference in respect to the Works, including but not limited to by way of extension of the construction programme.

3.5 Delays
(a) If there are any delays which may hinder or prevent the Vendor from completing the Works on or before the Completion Date, the Vendor must provide NPM with particulars in respect to the delay by way of written notice and inform NPM of the impact such delays will have on the Completion Date.
(b) If the Vendor:
(i) does not complete the Works on or before the Completion Date; or
(ii) does not comply with clause 3.5(a),
NPM reserves the right to engage additional contractors to complete the Works at the Vendor’s cost in accordance with clause 3.7.

3.6 Defects
(a) The Vendor shall be responsible for, and make good, any defects in the Works within 5 Business Days of receiving a Defect Advice from NPM.
(b) If the Vendor fails to make good any defects in the Works within the time frame set out in clause 3.6(a), NPM reserves the right to engage additional contractors to complete the Works in accordance with clause 3.7 and any cost, expense or liability incurred by NPM in making good of any defects in the Works will be:
(i) a debt due and payable by the Vendor to NPM; and
(ii) capable of being set off against any outstanding payment due to the Vendor by NPM or otherwise claimed by the Vendor from NPM.

3.7 Insufficient Labour
(a) If in the opinion of NPM (acting reasonably) the Vendor is not at any time engaging a sufficient number of employees or contractors to carry out the Works, NPM may provide the Vendor with a written notice requiring the Vendor to engage a specified number of additional contractors within a reasonable timeframe.
(b) If the Vendor does not comply with a written request received from NPM as set out in clause 3.7(a), NPM may engage such additional contractors and/or hire such additional plant and equipment as required in order to complete the Works and any cost, expense or liability incurred by NPM in engaging such additional contractors and/or hiring such additional plant and equipment to complete the Works will be:
(i) a debt due and payable by the Vendor to NPM; and
(ii) capable of being set off against any outstanding payment due to the Vendor by NPM or otherwise claimed by the Vendor from NPM.

 

4. PAYMENT TERMS

4.1 Payment of Tax Invoice
Subject to clause 4.2, where NPM accepts the Tax Invoice in accordance with clause 1.6(a), NPM will pay to the Vendor the amount set out in the Tax Invoice within 30 days from the end of the month in which NPM accepts the Tax Invoice.

4.2 Retention Amount
(a) The Vendor acknowledges and agrees that where the amount on a Purchase Order is equal to or more than $10,000, NPM shall be entitled to retain 5% of the value of the Purchase Order (as varied from time to time) (Retention Amount), unless the Vendor provides NPM with a bank guarantee in satisfactory form for the Retention Amount on or before the due date for payment of the Purchase Order.
(b) The Retention Amount will be released to the Vendor as follows:
(i) 50% of the Retention Amount on the Completion Date; and
(ii) the balance of the Retention Amount within 12 months of the Completion Date.
(c) In consideration of NPM releasing a Retention Amount in accordance with clause 4.2(b), the Vendor releases and forever discharges NPM from any and all Claims which the Vendor has, had or at any time in the future may have, at law or in equity, against NPM in relation to, arising out of or in any way connected to the Purchase Order for which the Retention Amount is released.
(d) Clause 4.2(c) may be pleaded as a bar to any action commenced by the Vendor against NPM based upon any act or omission, advice, business, conduct, dealing or transaction arising out of, or in any way related, directly or indirectly to the Purchase Order for which the Retention Amount is released.

4.3 Withholding Payment
NPM will be entitled to withhold payment of a Tax Invoice (or any portion thereof) to the Vendor in the event that:
(a) any Works are not delivered by the Vendor to NPM as agreed;
(b) any Works are faulty or defective on delivery;
(c) the Works needs to be replaced by the Vendor, until such time as they are received and accepted by NPM;
(d) in the circumstances provided in clause 4.2(a), the Vendor has not provided NPM with a bank guarantee equal to the Retention Amount; or
(e) the Vendor breaches any of the obligations contained in Schedule 1B; or
(f) the Vendor breaches any of the warranties contained in Schedule 1C; or
(g) the Vendor breaches any of the Site Conditions contained in Schedule 1D; or
(h) the Vendor is in breach of any of their obligations under this Agreement;

 

5. REPORTING BREACHES OF WORKPLACE HEALTH & SAFETY LEGISLATION

5.1 The Vendor must provide NPM with the SWMS by way of email to projectadmin@nationalprojects.com.au (or, in the alternative, by providing the SWMS to a representative of NPM) prior to commencing Works.

5.2 The Vendor agrees to immediately report to NPM in respect of:
(a) any “notifiable incidents” (as defined in the Workplace Health & Safety Act 2011(NSW), Occupational Health and Safety Act 2004 (VIC), Work Health and Safety Act 2020 (WA), Occupational Safety and Health Act 1984 (WA), Work Health and Safety Act 2011 (QLD) or Work Health and Safety Act 2011 (ACT)); or
(b) any breaches of legislation; or
(c) any on the spot fines; or
(d) any improvement or prohibition notices issued by the WorkCover Authority NSW, WorkSafe Victoria, WorkSafe WA, Worksafe QLD or Workcover ACT, or other statutory authority; or
(e) any provisional improvements notices or cease work orders issued by a worker health and safety representative (WHSR) or union permit holder; or
(f) any refusal to undertake unsafe work by a worker or any safety complaint made by a client representative.

 

6. INSURANCES

6.1 The Vendor will obtain and keep current certificates of currency in respect of Public and Product Liability Insurance, Professional Indemnity Insurance and Workers Compensation (if the Vendor is a company) or Income Protection Insurance and Workers Compensation (if the Vendor is an individual) at the Vendor’s own cost and will make available copies of those certificates of currency to NPM within 2 days’ of NPM’s request.

6.2 The Vendor agrees to immediately notify NPM in writing if its insurance coverage is withdrawn or lapses during the term of this Agreement.

 

7. INDEMNITY AND EXCLUSION OF LIABILITY

7.1 The Vendor indemnifies and agrees to keep indemnified, NPM from all claims, costs, suits, demands, liabilities and expenses incurred by NPM, at law or in equity, arising from or in any way connected to this Agreement or to the provision, delay or failure to complete the Works, including without limitation, injury, damage, accident, illness and loss arising from or in any way connected to the provision of the Works.

7.2 The Vendor must reimburse NPM for all claims, costs, suits, demands, liabilities and expenses, at law or in equity, relating to, or as a result of, damage to NPM property or site works as well as expenses arising from or in any way connected to the Vendor which is incurred by NPM.

7.3 NPM, its agents, officers, directors, related entities, employees, contractors and representatives are not liable for:
(a) any direct, indirect, incidental, consequential, claim, loss, damage, injury, death or any act, omission or default of the Vendor or any other persons or claims made against NPM or the Vendor arising out of, or in relation to, this Agreement or the provision of the Works, whether or not such loss or damage was foreseeable or foreseen by either party;
(b) any changes, alterations or additions to the Works made by others without the express written approval of NPM;
(c) any and all Additional Charges arising after the Tax Invoice has been provided by the Vendor to NPM; and
(d) any Works that are not delivered by the Vendor in accordance with this Agreement.

7.4 NPM is discharged from all liability in respect to the Works, whether under the law of contract, tort, statute or otherwise and the Vendor will not be entitled to commence any action or claim whatsoever against NPM its agents, sub-agents, officers, directors, related entities, employees and representatives of NPM in respect to the Works.

7.5 The parties agree that the maximum liability of NPM to any person in connection with this Agreement is limited, and can be enforced against NPM, only to the extent of the highest benefit NPM received in a financial year throughout the relationship between the parties in respect to the provision of the Works.

7.6 The obligations under this clause will survive expiry or termination of this Agreement.

 

8. CONFIDENTIAL INFORMATION

8.1 During the term of this Agreement, the Vendor will receive the Confidential Information of NPM and will:
(a) not disclose, disseminate, reproduce or use the Confidential Information in any way, unless it has obtained the written consent of NPM;
(b) use its best endeavours to keep such Confidential Information securely protected; and
(c) only disclose the Confidential Information to relevant entities who have need to know on a confidential basis.

8.2 All Confidential Information remains the property of NPM and all Confidential Information and copies thereof (whether stored electronically or otherwise) will be returned to NPM or destroyed by the Vendor immediately upon expiry or termination of this Agreement.

8.3 This clause does not apply to Confidential Information:
(a) which is authorised to be disclosed; or
(b) which is already in the public domain; or
(c) which enters the public domain otherwise than as a result of an unauthorised disclosure or a breach of this Agreement by the receiving party; or
(d) which is or becomes lawfully available to the receiving party from a third party who has the lawful power to disclose such information on a non-confidential basis; or
(e) which is rightfully known to the receiving party prior to the date of the disclosure; or
(f) which is required to be disclosed by law or by a regulatory authority including under subpoena.

8.4 The requirement to maintain Confidential Information and the obligations under this clause subsist after this Agreement or any extension thereof is expired or terminates.

 

9. INTELLECTUAL PROPERTY

9.1 The Vendor agrees to disclose to NPM all valuable inventions, discoveries, improvements, work or other subject-matter created by, or on behalf of, the Vendor during the course of, or in connection with, performing work or fulfilling obligations under the Agreement.

9.2 The Vendor assigns to NPM all existing and future intellectual property rights, including, without limitation, copyright in, and rights to all documents, reports, formulas, code, models, software and any other material prepared by the Vendor in the course of, or in connection with, performing work or fulfilling obligations under the Agreement.

9.3 Such rights vest in NPM upon their creation, by virtue of this clause, regardless of whether the intellectual property is conceived or created in whole or in part by the Vendor, alone or in conjunction with others, using NPM’s property or not, in pursuance of instructions or not.

9.4 The Vendor will, at the request and expense of NPM, execute all documents and do all acts NPM deem necessary or desirable to vest such rights in NPM, including any assignments for the purposes of effecting and perfecting the title of NPM.

9.5 To the full extent permitted by law, the Vendor unconditionally and irrevocably waive all moral rights in the works which have been created or may be created in the course of engagement with NPM and consent to any act or omission which would otherwise breach or infringe the Vendor’s moral rights.

9.6 The Vendor indemnifies NPM against all claims by any person or entity arising out of the use of any concept, product or process by the Vendor for the completion of the Works and the Vendor warrants that any concept, product or process engaged by the Vendor to complete the Works does not breach the intellectual property rights of a third party.

9.7 If, during the provision of the Works, the Vendor includes or makes use of any work (or other subject matter) in which copyright subsists and which the Vendor or NPM do not own, the Vendor must give to NPM a written consent to distort, add, alter or adapt that work (or subject matter). The written consent is to be signed by the authorised owner of the copyright and addressed to NPM, the Vendor and any officer and employee of the Vendor involved in the provision of the Works.

9.8 The obligations under this clause will survive expiry or termination of this Agreement.

 

10. TERMINATION

10.1 NPM may terminate this Agreement by giving fourteen (14) days’ written notice to the Vendor.

10.2 NPM may terminate this Agreement immediately without notice to the Vendor if the Vendor:
(a) commits a breach of this Agreement; or
(b) breaches, or is in breach of, any of the obligations, warranties and acknowledgments of the Vendor under this Agreement;
(c) engages in any act or omission in the provision of the Works, which in the reasonable opinion of NPM, constitutes serious or willful misconduct; or
(d) is in a position of conflict and/or acts in a manner which is contrary to NPM’s best interests; or
(e) undertakes conduct which in the reasonable opinion of NPM might have a tendency to damage the reputation of NPM; or
(f) refuses, neglects or repeatedly fails to comply with any request or direction of NPM.

10.3 Notwithstanding any termination of this Agreement, clauses 7, 8 and 9 will subsist and continue to apply.

 

11. DISPUTE RESOLUTION

11.1 In the event of a dispute arising between the parties, the parties will use their best endeavours to try to resolve the dispute amicably through negotiations in good faith, discussion and other communication.

11.2 If a dispute cannot be resolved by agreement within 14 days (or within such longer period as both parties agree) the parties agree to refer their dispute to mediation and if applicable, subsequently arbitration.

11.3 The parties agree that resolution of any dispute will be treated as urgent and all parties will use their best endeavours to give effect to any mediation or arbitration and will cooperate by way of providing information and avoiding delay, wherever possible.

11.4 The parties agree to have their dispute resolved in Sydney and to be bound by any determination of an arbitrator.

 

12. ASSIGNMENT

12.1 NPM may assign its rights and/or obligations under this Agreement without the consent of the Vendor, but agrees to notify the Vendor of such assignment.

12.2 The Vendor may not assign its rights or obligations under this Agreement without the written consent of NPM.

12.3 For the avoidance of any doubt, if NPM provide consent to the Vendor to assign the rights or obligations under this Agreement, the Vendor will remain responsible for the provision of Works under this Agreement.

 

13. AMENDMENTS
This Agreement may only be amended in writing signed by both parties.

 

14. NOTICE
Any notice to be given in conjunction with this Agreement must be in writing and in English and must be sent by email to the recipient.

 

15. WAIVER
Failure to exercise or enforce or a delay in exercising or partially enforcing or exercising any right, power or remedy provided under the law or this Agreement by any party will not in any way preclude or operate as a waiver of any exercise or enforcement or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement.

 

16. SEVERABILITY

16.1 If a provision of this Agreement is or becomes invalid or unenforceable in a jurisdiction it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.

16.2 Any prohibited, unlawful, void or unenforceable provision will be replaced by an allowable, lawful, effective and enforceable provision which so far as is possible will have the same economic benefit or burden for the parties as the severed provision was intended to achieve. All obligations of the parties survive expiration or termination of this Agreement to the extent required for their full observance and performance.

 

17. ENTIRE AGREEMENT

17.1 This Agreement and the Purchase Order together embodies the entire understanding of the parties, constitutes the entire terms agreed on between the parties and supersedes any prior written or other agreement, representation, negotiation, arrangement, understanding and all other communications between the parties. Where there is any conflict or inconsistency between this Agreement with any other document, including the Vendor’s terms and conditions, whether in respect to the Works or not, the provisions of this Agreement will prevail.

17.2 Notwithstanding Clause 17.1, certain Purchase Orders will relate to Works that NPM has been engaged to do or supply under a contract issued by a third party to NPM (Third Party Contract). By accepting the Purchase Order, the Vendor agrees to carry out the Works set out in the Purchase Order in a way that ensures that NPM complies with its obligations under the terms of the Third Party Contract. NPM will provide the Vendor with a copy of the Third Party Contract (redacted to remove commercially sensitive items) upon request by the Vendor.

 

18. GOVERNING LAW
This Agreement is governed by the law in force in the state of New South Wales and will be construed in accordance with the law of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.

 

19. DEFINITIONS
In this Agreement, unless the context otherwise requires:
Additional Charges” means any additional costs and expenses incurred by the Vendor in relation to the Works which include, but are not limited to, costs and expenses associated with:
(a) delivering or performing the Works;
(b) replacement Works of similar specifications and quantities;
(c) removal of rubbish from site; and
(d) unpacking and assembling of the Goods.
Additional Works” means goods provided or services performed by the Vendor which are not set out in the Purchase Order provided by NPM to the Vendor;
Agreement” means the terms and conditions contained in this document;
Business Day” means any day except a Saturday or Sunday or other Public Holiday in New South Wales, Queensland, Australia Capital Territory, Western Australia or Victoria;
Claims” means any and all claims, demands, obligations, suits, causes of action, damages, debts, costs, accounts, expenses, verdicts and judgments whatsoever whether known, unknown, prospective or contingent;
Completion Date” means the date on which the Works are to be completed as agreed between the parties in writing;
Confidential Information” means any information, whether in the form of an original or copy and including but not limited to paper, magnetic or electronic, relating to NPM which is obtained by the Vendor in respect to this Agreement and the Works and includes, but is not limited to:
(a) the terms of this Agreement;
(b) records and documents (in any form) relating to NPM, including client records;
(c) ideas, concepts, knowledge, data bases and/or trade secrets;
(d) sketches, designs, reports, plans, drawings, specifications, samples, models, patterns, photographs, graphics, artworks or other documents supplied or created in the course of, or in connection with, the Vendor providing the Works under this Agreement;
(e) technical information and product and market information;
(f) commercial information about NPM and persons within the business of NPM and commercial knowledge related to, or developed in connection with, the Works;
(g) any information marked “Confidential” or which NPM informs the Vendor is confidential or a trade secret,
but excluding information available to the public or information which the Vendor can prove it lawfully possessed before the commencement of this Agreement.
Contractor Account Application” means the application contained at the website known as https://www.nationalprojects.com.au/contractor-account-application/.
Defect Advice” means written notice provided to the Vendor by NPM setting out defects in the Works;
Goods” means the items or products which are described in the Purchase Order provided by NPM to the Vendor;
Intellectual Property” means:
(a) an invention, discovery, secret process, novel design, improvement or modification of any nature;
(b) computer program material (including computer software, tables, charts, flowchart, algorithms, diagrams, plans, techniques, diagram structures, logical ideas, concept and processes);
(c) copyright in any works (including literary works and art works);
(d) trademarks;
made, written or developed by the Vendor (alone or with others) during the term of the Agreement (in or out of working hours), whether or not capable of such protection;
NPM” means National Projects and Maintenance Pty Ltd (ACN 165 833 901), NPM (Vic) Pty Ltd (ACN 623 232 637), National Projects Pty Ltd (ABN 60 619 578 634), National Projects (ACT) Pty Ltd (ABN 45 652 507 634) and National Projects (WA) Pty Ltd (ABN 22 652 507 536);
Purchase Order” means the document issued by NPM to the Vendor which sets out the types, quantities and agreed prices for Goods and/or Services to be provided by the Vendor;
Purchase Order Number” means the purchase order number specified on the Purchase Order;
SWMS” means a safe work method statement which outlines the high risk construction work activities to be carried out at a workplace, the hazards that may arise from these activities, and the measures to put in place to control the risks;
Services” means the services which are described in the Purchase Order provided by NPM to the Vendor;
Tax Invoice” means the invoice uploaded by the Vendor to the Vendor Portal in response to the Purchase Order which sets out the Goods and/or Services supplied in accordance with the Purchase Order;;
Vendor” means the addressee as set out in the Purchase Order and includes any person, sole trader, sub-contractor, contractor, company who performs the Works under this Agreement for the Vendor;
Vendor Portal” means the internet portal used by NPM to issue Purchase Orders and process and assess Tax Invoices uploaded by the Vendor;
Work Site” means the location at which the Vendor is to carry out the Works;
Works” means the Goods and/or the Services to be provided by the Vendor to NPM in accordance with Purchase Order.

 

20. Interpretation
In this Agreement, unless the context otherwise requires:
(a) the words “ include” , “ including” , “ for example” or “ such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(b) words importing the singular number shall include the plural and vice versa and words importing a person shall include a corporation and vice versa and words of each gender and the neuter gender shall include each other gender;
(c) time is of the essence in relation to the performance of all acts and obligations on the part of the Vendor;
(d) a clause, schedule or annexure is a reference to a clause, schedule or annexure of this Agreement;
(e) references to payments to any party include payments to another person upon the direction of such party;
(f) any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision amended, re-enacted or extended at the relevant time;
(g) in the interpretation of this Agreement no rules of construction shall apply to the disadvantage of one party on the basis that that party put forward this Agreement or any part of it.

 

SCHEDULE 1A: NPM OBLIGATIONS
NPM agrees to:
(a) consult, coordinate and cooperate with the Vendor;
(b) provide an indication as to quantities and specifications of Works;
(c) issue to the Vendor preliminary plans in respect to the Works (if applicable);
(d) provide the Vendor with project information in respect to the Works (if applicable);
(e) notify the Vendor of particulars concerning access to the site at which the Works are to be provided, including hours during which the Vendor is able to access the site;
(f) ensure the health and safety of all workers on its projects;
(g) comply with all requirements of the Work Health and Safety Act 2011 (NSW) and Work Health and Safety Regulations 2011 (NSW) where Works are carried out or supplied in New South Wales, Occupational Health and Safety Act 2004 (VIC) and Occupational Health and Safety Regulations 2017 (VIC) where Works are carried out or supplied in Victoria, Work Health and Safety Act 2020 (WA), Occupational Safety and Health Act 1984 (WA) and Occupational Safety and Health Regulations 1996 (WA) where Works are carried out or supplied in Western Australia, Work Health and Safety Act 2011 (QLD) and Work Health and Safety Regulation 2011 (QLD) where Works are carried out or supplied in Queensland, Work health and Safety Act 2011 (ACT) and Work Health and Safety Regulation 2011 (ACT) where Works are carried out or supplied in Australian Capital Territory; and
(h) prepare a site specific Work Health, Safety and Environmental Plan for all construction projects (as applicable).

 

SCHEDULE 1B: VENDOR OBLIGATIONS

The Vendor agrees to:
(a) (Vendor Portal) to use the Vendor Portal, including to upload all invoices to the Vendor Portal;
(b) (Plans, Quantities and Specifications) examine any plans, quantities and specifications provided by NPM in respect to the Works and prepare, and provide to NPM, comments in response to the suitability of the plans, quantities and specifications in respect to the Works;
(c) (Quantities and Measurements) bear absolute responsibility for, and satisfy itself of, any quantities, measurements and dimensions relating to the Works;
(d) (Design for Works) commence, carry out and complete the design for the Works (if applicable) so as to meet all requirements in respect to the Works;
(e) (Design Documents) ensure that any design documents are prepared with due care and diligence and consist with the intent and requirements of the Works and submit to NPM, in a timely manner, the proposed design documents for written approval;
(f) (Completion of Works) carry out and complete the Works in accordance with any design documents provided by NPM so that the Works, when completed, shall be fit for their stated purpose and comply with any and all requirements of NPM and for this purpose (but without limited the generality of the foregoing) it shall bear absolutely the risk of any failure to meet any performance requirements set out in this Agreement;
(g) (Approval of Design Documents) refrain from carrying out any part of the Works without having obtained written approval for the relevant design documentation from NPM;
(h) (Provision of Information) promptly provide all information that NPM may request regarding the Works, including the preferred sequence and interface of activities and details of proposed labour resources, materials and equipment in respect to the Works;
(i) (Request for Information) submit any requests for information in respect to the Works to NPM;
(j) (Materials, labour, plant and equipment) provide all necessary materials, labour, plant, equipment and any additional requirements to successfully carry out and complete the Works in accordance with any plans and specifications provided to the Vendor by NPM;
(k) (Delivery Times) confirm delivery times with respect to the Works with NPM’s project manager and site manager;
(l) (Subcontractors) engage a sufficient number of employees or sub-contractors to carry out the Works in accordance with the direction of NPM (acting reasonably) and liaise, co-operate and co-ordinate with such contractors and any other contractors;
(m) (Directions) comply, at its own cost, with any reasonable directions of NPM, including without limitation, directions for the co‐ordination and integration of the Vendor’s work with the work of other subcontractors;
(n) (Clean and Tidy) unpack the Goods which are delivered on site, keep the work site clean and tidy, remove and dispose of any rubbish on site and upon expiry or termination of this Agreement, remove all plant and equipment from site which is owned or operated by the Vendor;
(o) (Assemble and Inspect) assemble, arrange and place the Goods on site as per agreement between the parties and inspect and test the Works (as applicable);
(p) (Certificates) provide NPM with any certificates of installation, as built drawings and warranties in respect to the Works;
(q) (Wholesale Price) prevent disclosure of the wholesale price of the Works to any client of NPM;
(r) (Workmanlike manner) exercise reasonable skill, care and diligence and carry out any work in a proper and workmanlike manner and refrain from preventing, impeding, fettering, hindering or delaying the Works;
(s) (Works Not Included) not provide or perform, nor offer to provide or perform, goods or services to a client of NPM that is outside the scope of the Works, without the written consent of NPM;
(t) (Defects) bear the risk of any defects in the Works which may arise whether directly or indirectly as a result of any act or omission on the part of the Vendor or NPM;
(u) (Construction Programmes) if directed by NPM, supply construction programmes which cannot be extended, nor can they require additional payment or affect either party’s rights or obligations under this Agreement;
(v) (Approvals) apply for, obtain, comply with and observe, at its own cost, all approvals for the Works as may be required, and all licenses, consents, determination and permissions necessary for the execution of Works including without limitation, any necessary dispensation from requirements of a building approval and or the Building Code of Australia or other industry standards, from any relevant authority;
(w) (Laws and Requirements) comply with all laws, ethical requirements, professional customs and conventions, acceptable standards, codes of practice, legislative and compliance obligations set out in the Modern Slavery Act 2018 (Cth), WorkCover guidelines and the Work Health, Safety and Environmental Plan (as prepared by NPM) and immediately notify NPM of an inability to do so.

 

SCHEDULE 1C: VENDOR WARRANTIES
The Vendor warrants that:
(a) all of the information provided to NPM via the Contractor Account Application is true and accurate in all respects;
(b) it possesses the necessary experience, qualifications and licenses to enable full and proper provision of, or performance of, the Works;
(c) it is competent to undertake the Works;
(d) it shall at all times exercise due skill, care and diligence in the carrying out and completion of the Works; and
(e) all costs in relation to any design documentation and the design obligations of the Vendor have been paid for by the Vendor and allowed for by the Vendor within the Tax Invoice.

 

SCHEDULE 1D: WORK SITE CONDITIONS

1. The Vendor assumes the physical and other conditions at the Work Site and the surrounding area as a whole and the risk in respect thereof, including, but not limited to, conditions relating to the environment, access, waste disposal, handling and storage of materials, the availability and quality of electric power, the availability and quality of water, the availability and quality of roads, the availability and quality of labour personnel and local work and labour rules, climatic conditions and seasons, topography, air and water quality conditions, ground surface conditions, surface soil conditions, sound attenuation, subsurface geology, nature and quantity of surface and subsurface materials to be encountered, all other local and other conditions which may be material to Vendor’s performance of its obligations under this Agreement (Work Site Conditions).

2. The Vendor agrees:
(a) that it has examined all documents relating to the carrying out of the Works and has satisfied itself as to the extent, nature and location of the Works to be performed by the Vendor and the Work Site Conditions as it impacts, or relates to, the Works including any access or other constraints of the Work Site, the requirements of this Agreement, and all other matters which could in anyway affect the cost and time of the performance of its obligations under this Agreement;
(b) to provide all materials necessary to overcome the Work Site Conditions at its own cost so that the Works under this Agreement are completed on or before the Completion Date in exchange for the amount set out in the Tax Invoice;
(c) that any failure by the Vendor to acquaint itself with the Work Site Conditions shall not relieve the Vendor from performing its obligations under this Agreement; and
(d) that the Vendor shall have no claim arising from the existence of any Work Site Conditions, whether or not the Work Site Conditions could have been reasonably anticipated at the time of the Vendor providing NPM with a quote with respect to the Works set out in the Purchase Order.

3. The Vendor acknowledges that:
(a) NPM makes no representations, warranties or guarantees as to the sufficiency or accuracy of the information relating to the Work Site or the Work Site Conditions;
(b) it has had the opportunity to inspect the Work Site and perform its own tests and make its own assessment of the risks associated with any Work Site Conditions;
(c) it has reviewed any information relating to the Work Site and made its own assessment of such information and the Work Site; and
(d) it has not relied on, and shall not rely on, any information in respect to the Work Site for any purpose unless it has independently checked and verified such information.

4. The Vendor agrees that:
(a) the Purchase Order includes all costs necessary to carry out the Works at the Work Site including, without limitation:
(i) receipt and handling of all materials delivered to the Work Site for the Vendor and locating or relocating the same, including as directed by NPM;
(ii) cleaning up and reinstating as necessary the Work Site or those parts of it that have been affected by the Works, including as directed by NPM;
(iii) all Work Site allowances for the duration of the term of this Agreement;
(b) the Vendor is at all times responsible for:
(i) the removal of its own rubbish from the Work Site at its own expense;
(ii) costs of the Vendor for complying with requirements of local councils and statutory authorities having jurisdiction over the Work Site, and the occupational, health and safety including the amount of any fines imposed by any authorities governing such issues; and
(iii) providing for security and insurance for all unfixed materials either supplied by or to or coming under control of the Vendor on the Work Site.
(c) it has allowed sufficient time to carry out the Works by the Completion Date; and
(d) the provision of any information relating to the Work Site and anything contained in such information, shall not affect the assumption by the Vendor of the risk of Work Site Conditions under this Agreement and the Vendor shall have no claim arising from or in connection with the provision of any such information relating to the Work Site.

5. Notwithstanding that NPM will give to the Vendor access to the Work Site which is reasonably necessary for the Vendor to comply with its obligations under this Agreement, the Vendor acknowledges and agrees that:
(a) it shall not enter any part of the Work Site which it has been notified by NPM as a place to which the Vendor is not to have access, without prior written approval of NPM;
(b) it shall not have sole possession of any part of the Work Site;
(c) its access to the Work Site may be limited for any period of time, non-continuous or obstructed by other works, including the works of other contractors and it has made sufficient allowance in the Tax Invoice to accommodate the operation of this clause, and shall not be entitled to any claim arising out of the operation of this clause;
(d) the Vendor shall carry out the Works during working hours as directed by NPM or required by law (Working Hours);
(e) where the Vendor does not, or cannot, carry out the Works during Working Hours, the Vendor must either:
(i) engage additional labour as necessary to carry out the Works during the Working Hours; or
(ii) pay NPM at a rate of $125.00 per hour for each hour during which the Vendor carries out the Works outside of the Working Hours;
(f) any cost, expense or liability incurred by NPM in relation to clause 4(e) of this Schedule 1D will be:
(i) a debt due and payable by the Vendor to NPM; and
(ii) capable of being set off against any outstanding payment due to the Vendor by NPM or otherwise claimed by the Vendor from NPM.