VAST Electrical Services Pty Ltd ABN 16 090 074 267
Our Agreement with You
- The Purchase Order and the VAST General Terms and Conditions set out our agreement with you.
- Read both documents carefully and notify us of any issues or queries.
- Sign and return a copy of the Purchase Order and General Terms and Conditions, together with a copy of your applicable insurance policy.
- Contact your VAST Representative if you have any queries.
General Terms and Conditions
These are the terms and conditions referred to in the Purchase Order.
The following definitions shall be used for the purpose of interpreting these terms and conditions and the Purchase Order:
“Act of Insolvency”
- in the case of an individual, that person:
- commits an act of bankruptcy;
- has a bankruptcy petition presented against them or they present their own petition;
- is made bankrupt;
- makes a proposal for a scheme of arrangement or a composition; or
- has a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cth) or like provision under the law governing this Agreement; or
- in the case of a corporation:
- notice is given of a meeting of creditors with a view to the corporation entering a deed of company arrangement; or
- it enters a deed of company arrangement with creditors;
- a controller or administrator is appointed; or
- an application is made to a court for its winding up and not stayed within 14 days; or
- a winding up order is made in respect of it; or
- it resolves by special resolution that it be wound up voluntarily (other than for a member’s voluntary winding up); or
- a mortgagee of any of its property takes possession of that property; or
- a party informs the other in writing, or creditors generally, that the party is insolvent or is financially unable to proceed with this Agreement; or
- execution is levied against a party by a creditor.
“Completion of Works”
Has the meaning given in clause 8.
- any work or material that is not in accordance with this Agreement;
- any work or material that is not performed or supplied and includes and omissions, faults, non-compliances with any obligations or requirements of this Agreement;
- any work or material that is not accepted by us because it does not comply with this Act;
- a breach of your Design Obligations.
“Defects Liability Period”
means from _______________ to ________________ or, if nothing stated, 12 months from the Practical Completion date.
means the drawings, specifications and other information, samples, models, patterns and the like required by this Agreement and created for the construction of the Works.
means all tasks necessary and desirable to design and specify the Works, including preparation of Design Documents in accordance with Good Industry Practice and clause 14.
includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, refection, request or requirement.
includes a difference and otherwise has the meaning referred to in clause 37.
- any negligence act or omission of us or our consultants, agents, employees or other contracts (not being employed by you);
- any risk specifically excepted elsewhere in this Agreement;
- Defects in the design of the Works, other than design provided by you.
has the meaning given in clause 37.
“Force Majeure Event”
means an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:
- riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority or the declaration of an infectious disease or any orders or directions made under the Biosecurity Act 2015 (Cth);
- ionising radiation or contamination, radioactivity from any nuclear fuel or nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
- earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions regardless of severity
- strikes or industrial disputes at a national level, or strikes or industrial disputes by labour not employed by the affected party, its sub-contractors or its suppliers, and which affect an essential portion of the Works, but excluding any industrial dispute which is specific to the performance of the Works or this Agreement.
means machinery, plant, equipment, apparatus, materials, articles, erection works, services and things of all kinds to be supplied, delivered or performed by you in accordance with this Agreement.
“Good Industry Practice”
- acting honestly and to the best of your ability;
- acting in accordance with all applicable laws and in a manner that will not cause us to be in breach of any laws;
- acting with the degree of skill, care and diligence to be expected of a qualified, thorough, skilful and professional contractor highly experienced in performing works the same, or similar to the Works and complying with relevant international and Australian standards;
- acting in a manner which allows for the Works to be undertaken by the Completion of the Works;
- using suitably qualified and experienced personnel and sufficient resources to comply with this Agreement.
has the meaning given in A New Tax System (Goods and Works Tax) Act 1999 (Cth).
Includes Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction where the Works or a particular part of the Works is being carried out, certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the carrying out of the Works and fees and charges payable in connection with the foregoing.
means the land and other places to be made available and any other lands and places made available to you by us for the purpose of completing the Works pursuant to this Agreement.
means “us”, being VAST Electrical Services Pty Ltd ABN 16 090 074 267
means the document titled Purchase Order describing the Goods and/or Services to be provided by you, the price and the date in which those Goods and/or Services must be supplied. It also includes any special conditions, notes, instructions or attachments.
has the meaning given in Clause 18.
means “you”, being the person (including an individual, firm or corporation) named in the Purchase Order who has agreed to supply and deliver the Goods and/or Services.
means the performance of work with or without the supply of Goods.
“Show Cause Notice”
means a notice which states that it is a Show Cause Notice of this Agreement and (whichever is applicable):
- specifies the alleged breach or financial concern;
- requires you to remedy the breach or financial concern;
- specifies the reasonable time and date, having regard to what is needed to remedy the breach or financial concern, by which you must remedy the breach or financial concern;
- if we require you to provide security, specifies the amount of that security.
means the Services which are performed and / or the Goods which are supplied pursuant to this Agreement.
3. When These Terms and Conditions Apply
These terms and conditions:
- apply to any contract entered into by us issuing a Purchase Order to you, whether as an offer or acceptance of an offer;
- prevail in any conflict between them and the terms of any offer or acceptance by you;
- together with the Purchase Order and any attachments, form our entire agreement with you (Agreement).
Our agreement with you commences on the date the Purchase Order is issued.
You must read the Purchase Order and ensure that it is correct. The Purchase Order is a legally binding document and will be taken to be accepted:
- upon you signing and returning a copy to us; or
- upon you commencing the Works for us.
6. Performance Of Works
You shall carry out and complete the Works in accordance with this Agreement, Directions authorised by this Agreement and Good Industry Practice.
7. Materials and Labour
Except where this Agreement otherwise provides, you shall supply everything necessary for the proper performance of your obligations under this Agreement.
8. Completion Of Works
You shall be taken to have completed the Works, when the Works have been carried out in accordance with this Agreement, including any variations and revisions.
9. Purchase Price
Unless varied and agreed by us in writing, the Purchase Price is the price set out in the Purchase Order, in Australian dollars, which excludes GST. For sake of clarity, the Purchase Price includes all costs associated with completing the Works in accordance with this Agreement, including materials (i.e. light fitting accessories including power supplies, drivers, lamps, suspensions, flex and plugs, mounting brackets) testing, packing, installation and delivery.
Where you require us to pay a deposit for Goods:
- you agree that the deposit will be applied immediately towards the purchase of those Goods;
- you will provide us with evidence that the Goods have been ordered and the deposit applied towards the purchase within 7 days of payment by us;
- you agree the Goods are held on trust in our favour, and that upon payment of the balance of the Purchase Price, the Goods will be delivered to us immediately;
- we may direct you to provide a bank guarantee for the value of the deposit paid by us, which may be called upon by us in the event that you commit an Act of Insolvency or otherwise fail to deliver the Goods by the Completion of Works.
Payment of the Purchase Price will be made:
- in accordance with this Agreement; and
- within 60 days from end of the month, unless agreed by us in writing on the basis that an invoice is received from you before the 28th of that month; and
- may be adjusted by any additions or deductions made pursuant to this Agreement.
We may take security as a means of allocating risk and/or withhold a retention amount of 2.5% of the Purchase Price for the duration of the Defects Liability Period.
If you fail to comply with your obligations under this Agreement, we may have recourse to security, retention moneys or both and may convert into money security that does not consist of money where:
- we are entitled to exercise a right under this Agreement in respect of the security, retention moneys or both;
- in order to satisfy entitlements we may have to a debt or damages from you;
- where recourse is had to security under this Agreement in respect of an act or omission of you;
- if, in our absolute discretion, we consider that we have a bona fide claim against you under this Agreement.
Unless otherwise provided, you shall use and apply suitable new material, proper and tradesmanlike workmanship and Good Industry Practice. Should we require further quality assurance, you shall:
- plan, establish and maintain a quality conforming system; and
- ensure that we, or any other party who we authorise, has access to your quality system for the purposes of monitoring and quality auditing. Any such quality system shall be used only as an aid to achieving compliance with this Agreement. Such system shall not discharge your other obligations under this Agreement.
14. RESPONSIBILITIES AND WARRANTIES
- comply with all reasonable Directions provided by us;
- remain fully responsible for the Works carried out by you, notwithstanding any review or acceptance of the Works by us;
- bear all the costs of all fees and charges required to comply with the law;
- subject to the terms of this Agreement, not cause any information relating to this Agreement or the Works to be used or supplied or conveyed to any other person for any purpose other than, and only to the extent necessary, for the execution of the Works in accordance with this Agreement;
- ensure that all materials used, including methods of construction, are suitable for their intended purpose;
- ensure all Design Documents, other documentation, reports, recommendations, and any other work produced or performed as part of the Works will:
- satisfy and comply with all applicable laws;
- be suitable, appropriate and fit for their respective functions and purposes including any function and purpose stated in or to be inferred from this Agreement;
- produce the Design Documents required for the proper performance of the Works and accommodate in the Design Documents whatever we consider reasonably necessary or appropriate for the satisfactory execution and completion of the Works;
- assist us to resolve any Dispute which may arise from the Works;
- comply with any relevant quality assurance standards as advised by us;
- present Works in progress in a full, coherent, coordinated and professional way, with supporting briefs and commentary;
- consult regularly with us regarding our ongoing requirements during the performance of the Works.
15. DEFECTIVE WORK
If we become aware of any Defect in the Works, we shall as soon as practicable give you written details thereof. If the Defect has not been rectified, we may direct you to do any one or more of the following:
- remove the material from the Project Site;
- demolish the work;
- reconstruct, replace or correct the work; and
- not deliver it to the Project Site.
If you fail to comply with such a Direction and that failure has not been made good within 5 days after you receive written notice from us that we intend to have the Works rectified by others, we may have the Works rectified and we shall certify the cost incurred as moneys due from you to us.
We may give you a Direction under this clause at any time before the expiry of the last Defects Liability Period.
16. DEFECTS LIABILITY
The Defects Liability Period shall commence on the date provided in this Agreement.
As soon as possible after the Completion of the Works you shall rectify all Defects.
During the Defects Liability Period, we may give you a Direction to rectify a Defect which:
- shall identify the Defect and the date for completion of its rectification; and
- may state a date for commencement of the rectification and whether there shall be a separate Defects Liability Period thereafter.
You shall carry out rectification at times and in a manner causing as little inconvenience to the occupants or users of the Works as is reasonably possible.
If the rectification is not commenced or completed by the stated dates, we may have the rectification carried out by others but without prejudice to any other rights and remedies we may have. The cost thereby incurred shall be certified by us as moneys due and payable to us.
You shall not vary the Works except as directed by us in writing.
Notice of variation – We may direct you to vary the Works by any one or more of the following:
- increase, decrease or omit any part;
- change the character or quality;
- change the levels, lines, positions or dimensions;
- carry out additional work;
- demolish or remove material no longer required by us. Upon receiving a notice from us, you shall, as soon as practicable after receiving such notice, notify us whether the proposed variation can be effected, together with, if it can be effected, your estimate of the:
- effect on the timeframe agreed; and
- cost of the proposed variation.
Quotation of variation – We may direct you to give a detailed quotation for the proposed variation supported by evidence.
Price of variation – The price of any variation shall be approved by us in writing and added or deducted to the Purchase Price.
18. REVISIONS TO PURCHASE ORDER
From time to time we may make a revision to the Purchase Order to correct any errors or omissions or make any changes including in relation to specifications, quantity and delivery. You must not make any revisions until the timeframe and costs have been agreed by us.
In carrying out and completing the Works, you shall satisfy all legislative requirements.
20. PROTECTION OF PEOPLE AND PROPERTY
Insofar as compliance with this Agreement permits, you shall:
- take measures necessary to protect people and property;
- avoid unnecessary interference with the passage of people and vehicles;
- prevent nuisance and unreasonable noise disturbance; and
- comply with any Directions given us in order to ensure a safe and healthy working environment
If you or any of your employees or agents damage property, you agree to notify us immediately and promptly and rectify the damage and pay any compensation which the law requires you to pay. If you fail to comply with an obligation under this clause, after we have given you reasonable written notice, we may have the obligation performed by others. The cost incurred shall be certified by us as moneys due from you to us.
21. URGENT PROTECTION
If urgent action is necessary to protect the Works, other property or people and you fail to take the action, in addition to any other remedies we have, we may take the necessary action. If the action was action which you should have taken at your own cost, we shall certify the cost incurred as moneys due from you to us. We may give you prior written notice of the intention to take action pursuant to this clause.
22. CARE OF THE WORKS AND REINSTATEMENT OF THE DAMAGE
You shall be responsible for the care of:
- the whole of the Works from and including the date of commencement of the Works to 4.00pm on the date of Completion of the Works;
- outstanding work and items to be removed from the Project Site by you after 4.00pm on the date of Completion of the Works until completion of the outstanding Works in accordance with this Agreement.
If loss or damage, other than that caused by an Excepted Risk occurs to the Works during the period of your care, you shall, at your cost, rectify such loss or damage.
In the event of loss or damage being caused by any of the Excepted Risks (whether or not in combination with other risks), you shall to the extent directed by us, rectify the loss or damage and such rectification shall be a deemed variation in accordance with clause 17. If loss or damage is caused by a combination of Excepted Risks and other risks, we, in pricing the variation, shall assess the proportional responsibility of the parties.
23. DAMAGE TO PERSONS AND PROPERTY
You shall indemnify us against:
- loss of or damage to any property of another party for which we are held liable in connection with the Works;
- (b) claims in respect of personal injury or death or loss of, or damage to, any other property for which we are held liable arising out of or as a consequence of the carrying out of the Works.
24. INSURANCE, PROOF AND CLAIMS
Before commencing the Works, you shall insure all the things referred to in clause 22 against loss or damage from any cause until you cease to be responsible for their care. You must provide us with a copy of the certificate of insurance and policy documents when we request in writing or otherwise.
Proof of policy – If, upon request, you fail to provide us with satisfactory evidence of insurance held by you then, without prejudice to other rights or remedies, we may insure and the cost shall be certified by us as moneys due and payable from you in default to us. We may also refuse payment until such evidence is satisfactorily produced by you.
Contents of policy – You shall ensure that the policy contains provisions which:
- requires the insurer to inform both parties, whenever the insurer gives a notice in connection with the policy;
- requires the insurer to inform us if you fail to maintain the policy and prior to cancellation of the policy; and
- provides that a notice of claim given to the insurer by us shall be accepted by the insurer as a notice of claim given by both parties.
Notices of potential claims – You shall, as soon as practicable, inform us in writing of any occurrence that may give rise to a claim under your insurance policy.
Settlement of claim – Upon settlement of a claim under the insurance policies required pursuant to this Agreement:
- to the extent that reinstatement has been the subject of a payment or allowance by us to you, if you have not completed such reinstatement, insurance moneys received shall, if requested by either party, be paid into a bank account as directed by us. As you reinstate the loss or damage, we shall certify against the joint account for the cost of the reinstatement;
- to the extent that reinstatement has not been the subject of a payment or allowance by us to you, you shall be entitled immediately to receive from insurance moneys received, the amount of such moneys so paid in relation to any loss suffered by you.
25. PUBLIC LIABILITY INSURANCE
Before commencing the Works, you shall effect and maintain for the duration of the Works, a Public Liability Policy, which is in the joint names of the parties.
26. INSURANCE OF EMPLOYEES
Before commencing the Works, you shall insure against statutory and common law liability for death of or injury to persons employed by you. You shall maintain the insurance until completion of the Works. Where permitted by law, the insurance policy or policies shall be extended to provide indemnity for any statutory liability we may have to your employees.
You shall superintend the Works personally or by a competent representative.
You must not subcontract any of the Works without our prior written approval, which shall not be unreasonably withheld. We may direct you to have removed, within a stated time, from the Project Site or from any activity of the Works, any person employed by you who, in our opinion, is incompetent, negligent or guilty of misconduct.
29. PROJECT SITE
Provided you are satisfactorily insured, if applicable, we shall give you possession of sufficient of the Project Site for commencement of the Works on the Project Site. Delay by us in giving possession shall not be a breach of this Agreement.
30. CLEANING UP
You shall keep the Project Site and Works clean and tidy and regularly remove rubbish and surplus material. If you fail to comply with this clause, we may direct you to rectify the non-compliance and the time for rectification. If you fail to comply with such a Direction immediately, we may have the work carried out by others and certify the cost incurred as moneys due from you to us.
31. WORKING HOURS
We shall inform you of the working hours on the Project Site. The working hours cannot be varied without our prior written approval, except when, in the interests of safety of persons or property, you find it necessary to carry out the Works otherwise, in which case you shall give us written notice of those circumstances as soon as possible.
You shall give us reasonable advance notice of when you need information, materials, documents or instructions from us. We may direct in what order and at what time the various stages or portions of the Works shall be carried out.
If you cannot reasonably comply, you shall give us written notice of the reasons.
We may direct you to suspend the carrying out of the whole or part of the Works for such time as we think fit. You shall not be entitled to any additional payments as a result of the suspension. Furthermore, if the suspension is caused by an act, default or omission by you or you wish to suspend the carrying out of the whole or part of the Works, the cost of the suspension shall be borne by you, and added or deducted by us to the Purchase Price.
34. TIME AND PROGRESS
You shall ensure that the Works are completed within the time agreed.
Delay – If you become aware of anything which will probably cause delay to the Works you shall immediately give us written notice of that cause and the estimated delay.
Extension of time – Upon receipt of your written notice, we may request further information or provide you with an extension of time.
Notice of Completion of Works – You shall give us at least 7 days written notice of the date upon which you anticipate the Completion of Works.
Liquidated damages – If Completion of the Works is not reached, we shall certify, as due and payable to us, liquidated damages at a rate of _________ for every day after the anticipated date of Completion of the Works as agreed between the parties, to and including the earliest of the date of Completion of Works to termination of this Agreement or us taking the Works out of your hands. (See also Variations.)
35. DEFAULT OR INSOLVENCY
Breach – If you commit a breach of contract which is capable of remedy we may give you written notice to remedy the breach (Show Cause Notice). You must provide a response to the Show Cause Notice within 2 days after the notice is received.
Substantial breach – If you commit a substantial breach or breach an essential term that is not capable of remedy or repudiates this Agreement, we may terminate this Agreement, without the need to issue a Show Cause Notice. Substantial breaches include but are not limited to:
- failing to provide security, evidence of insurance, comply with a Direction given by us or use the materials or standards of work required by this Agreement;
- wrongful suspension of work;
- substantial departure from the Works and Completion of the Works without reasonable cause or our approval;
- failing to proceed without due expedition and without delay; and
- knowingly providing documentary evidence containing an untrue statement.
Our rights – If you fail to show reasonable cause by the required date and time, we may by written notice to you, take the whole or part of the Works out of your hands and suspend payment or terminate this Agreement.
Completion by us – We may complete the Works taken out of your hands and do all things and/or use all materials, equipment and other things as are reasonably required by us to facilitate the completion of the Works.
Adjustments on completion of work taken out – When work taken out of you hands has been completed, we shall assess the cost incurred and certify moneys due and payable and accordingly the difference between that cost (showing the calculations) and the amount which would otherwise have been paid to you if the Works had been completed by you.
Insolvency – In the event that you commit an Act of Insolvency, we may, without giving a Show Cause Notice, terminate this Agreement.
Our rights upon termination – If you breach or repudiate this Agreement, nothing in this clause shall prejudice our right to recover damages or exercise any other right.
You agree to indemnify us against all losses, damages, liabilities, actions, suits, claims, demands, costs and expenses in respect of and arising from any breach of a term of this Agreement.
37. DISPUTE RESOLUTION
Should a Dispute arise between the parties in connection with the Works or this Agreement, then either party shall not commence any court or arbitration proceedings relating to the Dispute, without first complying with this clause.
Notice of dispute – If a dispute arises then either party shall deliver by hand or send by certified mail to the other party notification of the Dispute (Dispute Notice) in writing adequately identifying and providing details of the Dispute. give the other a written notice of a Dispute and adequately identify and provide details of the Dispute.
Performance of obligations – Notwithstanding any Dispute, the parties shall, continue to perform their obligations under this Agreement.
Further steps required before proceedings – Within 7 days after receiving a Notice of Dispute, the parties shall confer at least once to attempt to resolve the Dispute or to agree on methods of resolving the Dispute by other means. At any such conference each part shall be represented by a person having authority to agree to a resolution of the Dispute.
Arbitration – If the Dispute is not resolved at the meeting referred to in this clause, it may be referred to arbitration by written notice by either party to the other party or, if agreed between the parties, Expert Determination.
Expert Determination – If the parties agree, prior to the dispute being referred to arbitration, that the Dispute shall be referred to Expert Determination, then the Dispute must be determined by an Expert to be nominated by the parties by agreement. If within 10 business days of the Dispute being referred to Expert Determination the parties have not agreed to an Expert, the Expert must be chosen by the Chairperson of the Resolution Institute of Victoria. The Expert Determination must be conducted in accordance with the Guidelines for Expert Determination of the Australian Commercial Dispute Centre. Each party must bear its own costs and pay one half of the expert’s fees. The expert’s determination will be final and binding on the parties except for fraud or gross negligence.
You shall be liable to us for any acts, defaults and omissions, including acts, defaults and omissions of your employees and agents.
39. FORCE MAJEURE EVENT
- Neither party is responsible for any failure to perform its obligations under this contract if it is prevented from, or delayed in, performing those obligations by an Event of Force Majeure.
- Where there is an Event of Force Majeure, the party prevented from, or delayed in performing its obligations under this contract must immediately notify the other party and full particulars of the event and the reasons for the event preventing that party from, or delaying that party in, performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event upon its or their performance of the contract and to fulfill its or their obligations under the contract.
- Upon completion of the Event of Force Majeure, the party affected must, as soon as reasonably practicable, recommence the performance of its obligations under this contract.
- An Event of Force Majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
- The Supplier has no entitlement to, and the Purchaser has no liability for any costs, losses, expenses, damages or the payment of any part of the Purchase Price during an Event of Force Majeure or any delay costs incurred by the Supplier due to an Event of Force Majeure.
Except as provided at law or in equity or elsewhere in this Agreement, none of the provisions of this Agreement shall be varied, waived, discharged or released, except with the prior written consent of the parties.
You shall not, without our prior written consent and approval, assign this Agreement or any part of it or any payment or any right, benefit or interest thereunder.
42. CONFIDENTIAL INFORMATION
You shall ensure that you keep confidential such documents, samples, models, patterns and other information as are supplied and clearly identified as confidential. If required in writing by us, you shall enter into a separate agreement not to disclose to anyone else any confidential matter even after termination of this Agreement.
You shall not disclose any information concerning the Works for distribution through any communications media without our prior written approval.
44. INTELLECTUAL PROPERTY RIGHTS
You warrant that, unless otherwise provided in this Agreement, design, materials, documents and methods of working, each specified in this Agreement or provided, shall not infringe any intellectual property rights. Should an infringement occur, you shall indemnify us against any such respective infringements.
45. APPLICABLE LAW
This Agreement is government by the laws of Victoria. Each party agrees that any legal action or proceedings with respect to its obligations under this Agreement shall be brought in the State of Victoria and each of the parties voluntarily submits to that jurisdiction.
46. SERVICE OF NOTICES
A notice (and other documents) shall be deemed to have been given and received:
- if addressed or delivered to the relevant address recorded on the Purchase Order or last communicated in writing to the person giving the notice; and
- on the earliest date of actual receipt, confirmation of correct transmission of email or fax or 3 days after posting.