Standard Terms and Conditions
Parties1 See Contract Particulars(‘the Client’)2 See Contract Particulars(‘Sittis’)Background1. The Client wishes to engage Sittis to carry out and complete the Works on the terms and conditions of this Agreement.2. Sittis has agreed to carry out and complete the Works on the terms and conditions of this Agreement.
Operative Provisions1 Interpretation1.1 Glossary of terms Unless the context indicates otherwise, when used in this Agreement, each word or phrase defined in this clause 1.1 (‘Glossary of terms’) has the meaning given to it in this clause 1.1 (‘Glossary of terms’).Agreement means this agreement, including any Special Conditions and any schedule, exhibit or annexure as attached. Approval includes any consent, authorisation, registration, filing, agreement, notification, certificate, permission, licence, approval, permit, authority or exemption by from or with any Authority in relation to the Works, but excludes certificate of occupancy and use unless otherwise agreed between parties in writing. Authority includes any ministry, department, government, local government, governmental or semi-governmental authority, agency, instrumentality, corporation, any other legal entity with legislative or administrative authority, and all utilities (whether government owned or otherwise) having a responsibility or jurisdiction in relation to the Works.Builder’s Margin means, if applicable, the agreed sum (or a percentage) as set out in the Quotation.Business Day means any day which is not a Saturday, Sunday or a public holiday in the Jurisdiction.Civil Liability Legislation means any law in the Jurisdiction which makes provisions for proportionate liability of persons for apportionable claims.Claim includes any claim for an increase in the Contract Sum, for payment of money (including damages), or for an Extension of Time:(a) under, arising out of, or in any way in connection with, this Agreement, including any direction of the Client;(b) arising out of, or in any way in connection with, the Works or either party’s conduct before this Agreement; or(c) otherwise at law or in equity including:(i) by statute;(ii) in tort for negligence or otherwise, including negligent misrepresentation; or(iii) for restitution.Completion is that stage when the Works are complete, free from all but minor defects (in Sittis’ reasonable opinion) and fit for use and occupation by the Client for their intended use and purpose.Confidential Information means information that:(d) is, by its nature, confidential;(e) is designated by the Client as confidential;(f) is marked ‘Confidential’, ‘Commercial-in-Confidence’ or with any other description which would indicate that it is confidential; or(g) Sittis knows, or ought to know, is confidential;but does not include information which:(h) by law is required to be disclosed; or(i) is, or becomes, public knowledge other than by:(i) a breach of any undertaking by Sittis; or(ii) any other unlawful means.Consideration has the meaning given to that term by the GST Law.Consultant includes an architect, engineer, quantity surveyor, surveyor, lawyer, accountant, insurance consultant or other qualified expert appointed from time to time as a consultant by the Client or Sittis.Contract Documents means all Documents provided by the Client to Sittis, including this Agreement and the documents specified in Schedule 2, the Quotation, the Purchase Order and all Documents brought, or required to be brought, into existence by Sittis as part of, or for the purpose of, performing the Works.Contract Particulars means the particulars specified in Schedule 1.Contract Sum means the total sum as calculated in Item 5 of the Contract Particulars, to be paid to Sittis by the Client in accordance with this Agreement.Date for Possession of the Site means the date specified in Item 7 of the Contract Particulars.Date for Completion means the date specified in Item 6 of the Contract Particulars as adjusted in accordance with this Agreement.Date of Completion means the actual date of Completion.Defects means any defect, shrinkage, deficiency, fault or omission in the Works including any aspect of the Works which is not in accordance with the requirements of this Agreement.Defects Liability Period means the period specified in Item 10 of the Contract Particulars.Dispute Notice means the notice issued in accordance with clause 16.1.Documents include documents, equipment, software (including source code and object code), reports, technical information, plans, charts, drawings, calculations, tables, schedules and data (stored by any means), and includes all copies and extracts of the same.Environment means the components of the earth, including:(j) land, air and water; and(k) any layer of the atmosphere; and(l) any organic or inorganic matter and living organism; and(m) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a) to (c) inclusive.Environment Laws means all laws regulating, or relating to, the Environment, including the Environment Protection Act 1997 (ACT) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).Extension of Time has the meaning given in clause 13.2.Force Majeure means any of the following:(a) war and civil commotion;(b) earthquakes;(c) fire and explosions not contributed to by Sittis, its servants, agents or Trade Contractors;(d) the commencement of litigation against the Client or Sittis or the threat of litigation against the Client or Sittis by any one or more adjoining or neighbouring owners or occupiers which does not result from any negligent act or omission or material default by Sittis in the performance of its obligations under this Agreement;(e) the direction by any Court or competent Authority that the Works cease for any reason except to the extent that those events are caused or contributed to by the deliberate or negligent act, omission or default under any agreement or contract of Sittis or any of its employees, officers, agents or contractors; or(f) labour shortage caused by plague, viral outbreak or other epidemics, mandatory quarantines, production bans, city-wide lockdowns and embargoes.GST has the meaning given to that term by the GST Law.GST Law has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).Government means the Territory, State or the Commonwealth of Australia, as applicable.Independent Expert means the independent expert appointed in accordance with clause 16.6Insolvency Event means:(a) in the case of an individual or partnership:(i) the commission of an act of bankruptcy by a person under any Act;(ii) the entering into of any arrangement, or the transfer of any assets, for the benefit of creditors;(iii) an admission from the party that any debts of the party cannot be repaid; or(iv) anything analogous or of substantially the same effect to any of the events described above; and(b) in the case of a corporation:(i) the party becomes an externally-administered body corporate under the Corporations Act 2001 (Cth);(ii) steps are taken by any person towards making the party an externally-administered body corporate under the Corporations Act 2001 (Cth); or(iii) the party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth).Intellectual Property Rights means:(a) all rights in copyright, trade marks (including service marks), trade and service names, designs, circuit layouts, patents, inventions, discoveries and rights of confidence; (b) all Moral Rights; and(c) all other rights or forms of protection of a similar nature or having similar or equivalent effect to any of them, whether under international convention or otherwise, that may subsist anywhere in the world, whether current or future or registered (including applications for any of the above) or unregistered.Invoice means a Tax Invoice issued by Sittis to the Client for the Works performed by Sittis which must include the Works to which the invoice relates, the amount claimed and whether or not it is claimed pursuant to the Security of Payments Law;Jurisdiction means the jurisdiction in the State or Territory in which the Site is located;Land means the land specified in Item 8 of the Contract Particulars.Latent Conditions means the physical conditions on or under the Site and its near surrounds, which differ materially from the physical conditions which should reasonably have been anticipated by a competent builder having inspected the Site at the earlier of the date of submission of any tender offer or the Start Date.Moral Rights has the meaning given under the Copyright Act 1968 (Cth).Progress Claim has the meaning in clause 7.2Progress Claim Date has the meaning stated in Item 9 of the Contract Particulars.Purchase Order means the order for goods and materials required for the Works submitted by the Client to Sittis in writing, annexed herewith in Schedule 2.Qualifying Cause of Delay means the following causes of delay:(a) an act, default or omission of the Client or its consultants, agents or other contractors (not being employed by Sittis) in breach of this Agreement; or(b) a qualifying cause of delay stated in Item 11 of the Contract Particulars occurring before the Date of Completion.Quotation means the proposal or quotation submitted by Sittis to the Client outlining the scope of the Works, any special conditions attaching to the Works and which provides an estimate of the Contract Sum, annexed herewith in Schedule 2.Security of Payments Laws means the laws relating to security of payments in the building and construction industry in the Jurisdiction, including Building and Construction Industry (Security of Payment) Act 2009 (ACT), the Building and Construction Industry Security of Payment Act 1999 (NSW) or equivalent legislation in the State or Territory where the Services are performed.Site means:(a) the Land; and (b) those other contiguous lands,which are agreed between the Client and Sittis to be reasonably necessary for the carrying out of the Works.Sittis’ Activities means all things that Sittis has done in relation to the Works (whether before or after the date of this Agreement), or is required to do in relation to the Works, to comply with its obligations under this Agreement.Special Conditions means the Special Conditions attached to this Agreement at Schedule 3. Start Date means the date that the Sittis will commence the Works as specified in Item 4 of the Contract Particulars.Statute means any act, ordinance, order, rule, regulation, by-law, manual or other legislative or subordinate legislative instrument, and includes any industrial agreement, scheme, undertaking, code or award and also includes any replacement or amendment from time to time.Taxable Supply has the meaning given to that term by the GST Law.Tax Invoice has the meaning given to that term by the GST Law, and includes a recipient created tax invoice.Territory means: (a) when used in a geographical sense, the Australian Capital Territory; and (b) when used in any other sense, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).Trade Contract means any contract or other arrangement entered into between Sittis and a Consultant or Trade Contractor for the installation/construction of any part of the Works.Trade Contractor means any person engaged by Sittis in accordance with this Agreement to perform any part of the Trade Work.Trade Cost means the sum of all amounts payable to Trade Contractors for Trade Work.Trade Work means that part of the Sittis’ Activities for which Sittis must engage Trade Contractors.Variation means any change to the Works including an omission of any part of the Works as specified in clause 8.Work Health and Safety Laws means all laws relating to workplace health, safety and rehabilitation management in the Jurisdiction.Works means the work (including supply and installation) which Sittis is or may be required to carry out and complete under this Agreement and as detailed in the Contract Documents, and includes Variations, remedial work, construction plant and temporary works and any works to be performed to discharge the Sittis’ obligations under this Agreement, but excludes obtaining any certificate of occupancy and use and designing, unless otherwise specified in the Contract Documents.1.2 InterpretationIn this Agreement:(a) headings are for convenience only and do not affect interpretation;(b) any Special Conditions will, to the extent they are inconsistent with terms herein, take precedence over these terms;and, unless the context indicates a contrary intention:(c) words denoting the singular number include the plural and vice versa;(d) a reference to ‘person’ includes individuals, firms, companies, associations (incorporated or not incorporated), corporations, governments, government and statutory bodies and other entities;(e) references to parts or clauses are references to parts or clauses of this Agreement;(f) a reference to a part means a group of clauses all commencing with the same whole number;(g) references to this Agreement and any deed, agreement or instrument are deemed to include references to this Agreement or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;(h) references to any party to this Agreement include its successors or permitted assigns;(i) words denoting any gender include all genders;(j) a reference to any legislation or to any section or provision of any legislation includes any statutory modification or re-enactment of, or any statutory provision substituted for, that legislation, section or provision, and ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;(k) a reference to ‘$’ is to Australian currency;(l) the words ‘including’ and ‘includes’, and other cognate expressions, indicate what is included without limiting what may be included;(m) no rule of construction applies to the disadvantage of a party on the basis that the party puts forward this Agreement or any part of it;(n) whenever a party is required to indemnify the other, any indemnity will extend to the officers, employees and agents of the party to be indemnified;(o) an obligation of a party to do any act or thing may be satisfied by that party procuring another person to do that act or thing; (p) the word ‘consent’ includes approval or agreement; and(q) an obligation of a party not to do any act or thing shall be construed to include an obligation of that party:(i) not to permit that act or thing to be done; and(ii) to use its best endeavours to prevent that act or thing being done by another person.2 Engagement2.1 Appointment and acceptanceThe Client agrees to exclusively engage Sittis to carry out the Works on and from the Start Date in accordance with the terms of this Agreement, which Sittis accepts.2.2 ConsiderationIn consideration of Sittis agreeing to complete the Works, the Client will pay Sittis the Contract Sum and any other amounts which are payable by the Client to Sittis in accordance with this Agreement.2.3 Contract SumThe Client must pay Sittis the Contract Sum in the manner as set out in this Agreement.3 Role of Sittis3.1 Sittis’ ObligationsSittis must as soon as practicable, following the Start Date, commence the Works.3.2 PerformanceSittis must:(a) carry out and complete the Works in accordance with this Agreement; and(b) subject to the terms of this Agreement, complete the Works by the Date for Completion.3.3 Standard of careSittis must:(a) exercise the standard of skill, care and diligence in the performance of the Works that would be expected of a competent professional person with experience and expertise in carrying out works similar to the Works; (b) use good quality and ‘fit for purpose’ materials as specified in the Contract Documents;(c) if required, use only qualified, experienced and competent personnel to perform the Works; and(d) keep the Client fully and regularly informed about all matters affecting or relating to the Works. 3.4 Sittis’ acknowledgementsSittis acknowledges and warrants to the Client that it will carry out and complete the Works:(a) in a proper and workmanlike manner; (b) pursuant to the terms of this Agreement; and(c) in compliance with all applicable laws of the relevant jurisdiction.3.5 No warrantiesTo the extent permitted by law, Sittis’ does not make any warranties in relation to:(a) all part of the Works covered under a supplier’s or manufacturer’s warranty;(b) any silicone works undertaken by Sittis;(c) any issues of the Works relating to Intellectual Property Rights;(d) any part of the Works which the Client modifies in any way without Sittis’ prior written consent; (e) any part of the Works damaged, caused or contributed by the Client; (f) any part of the Works not undertaken by Sittis; and(g) any part of the Works damaged or lost as a result of the Client breaching or otherwise failing to observe its obligations in this Agreement.4 Role of the Client4.1 Information(a) The Client agrees and warrants that all Contract Documents provided to Sittis prior to the date of the Quotation, and this Agreement are true, correct and accurate.(b) The Client must make available to Sittis all information, including documents and particulars, relating to the Works and the Contract Documents at any time.(c) The Client must inform Sittis of any changes to the information, including Contract Documents and particulars relating to the Works and the Quotation, as soon as the Client is made aware. 4.2 Access The Client must:(a) On the Date for Possession of the Site, provide Sittis with clear and safe access, as required by Sittis, to the Site to enable Sittis to carry out the Works in accordance with this Agreement; (b) arrange access to any other property which may be necessary for Sittis to carry out the Works; (c) continue to provide Sittis with access under clause 4.2(a) and (b) until such access is no longer required by Sittis; (d) authorise Sittis to allow or refuse anyone access to the area subject to the Works, and to order unauthorised people away from the Site; and(e) secure any animals so they do not interfere with, or prevent Sittis from access to the Site.5 Trade ContractsThe Client acknowledges and agrees that Sittis may enter into Trade Contracts with respect to any part of the Works and assign or novate any of its obligations under this Agreement to any Trade Contractor.6 Insurance and IndemnitySittis must, at its own cost, effect and maintain professional indemnity, public liability, and workers compensation insurance for the duration of the Works.7 Completion and Payments7.1 Lodgement of Progress ClaimOn or before each Progress Claim Date, Sittis must deliver the Client a progress claim (“Progress Claim”) and an Invoice for the amount in the Progress Claim, plus any GST payable.7.2 Progress Claim Each Progress Claim must show:(a) the Works to which the Progress Claim relates; and(b) the amount of the Progress Claim (showing separately the applicable lump sum components of the Contract Sum); and(c) the percentage completion of each section or element of the Works.7.3 Progress Claim on the Date of CompletionIn respect of the Progress Claim submitted by Sittis on the Date of Completion, that Progress Claim must also include:(a) all amounts which Sittis claims from the Client on account of all amounts payable under this Agreement; and(b) any other amounts which Sittis claims from the Client,in respect of any fact, matter or thing arising out of, or in any way in connection with, the Works or this Agreement which occurred prior to the Date of Completion.7.4 Consideration of Progress ClaimWithin 10 Business Days after the relevant Progress Claim Date, the Client must deliver to Sittis a certificate (“Final Certificate”):(a) identifying the Progress Claim to which it relates;(b) certifying the amount for payment (“Certified Amount”); and(c) where the Certified Amount is less than the amount in the Progress Claim:(i) an explanation of the differences; and(ii) if the Certified Amount is less than the amount claimed in the Progress Claim because the Client is withholding payment for any reason, the Client’s reason for withholding payment. 7.5 Disputes concerning Progress ClaimsSittis may refer the rejection of any part of a Progress Claim for determination under clause 16.7.6 PaymentThe Client must pay Sittis the amount set out in the Invoice referred to in clause 7.1 within 5 Business Days of receipt.7.7 Final Certificate (a) The Final Certificate will be conclusive evidence that the Works have been completed satisfactorily, and the discharge of each party’s obligations in connection with the subject matter of this Agreement, except for:(i) any failure, Defect or other problem arising in relation to any matter arising in relation to a warranty during any warranty period that extends beyond the date of issue of the Final Certificate;(ii) fraud or dishonesty relating to the Works or any part thereof or to any matter dealt with in the Final Certificate;(iii) any accidental or erroneous inclusion or exclusion of any Work or figures in any computation or an arithmetical error in any computation; and(iv) unresolved issues the subject of any Dispute Notice served in accordance with clause 16 that is served within 5 Business Days after the issue of the Final Certificate.(b) If the Client fails to serve the Final Certificate on Sittis as required in clause 7.4, then the Client is deemed to have served the Final Certificate on Sittis which the Certified Amount equates to the total amount claimed in the relevant Progress Claim. 7.8 Title and Security(a) The title to and beneficial interest in any goods that are supplied in connection with the Works will remain solely with Sittis until full payment of the Contract Sum is received. Upon full payment of the Contract Sum, title to and beneficial interest will pass from Sittis to the Client.(b) Notwithstanding clause 7.8(a), risk in the goods that comprise the Works passes to the Client upon delivery to the Site and therefore the Client is required to maintain adequate insurance over the Site including the goods that are supplied in connection with the Works. The Client has an obligation to keep the goods that are supplied in connection with the Works safe, free from deterioration, destruction, loss or harm prior to transfer of the title.(c) The Client hereby agrees to indemnify and keep indemnified Sittis from all loss, liability or expenses incurred by Sittis or any third party in relation to a breach by the Client of clauses 7.8(a) and 7.8(b).(d) Sittis reserves all its right, including under the Personal Property Securities Act 2009 (Cth), to:(i) enter the Site without liability for trespass or any resulting damage and retake possession of the goods supplied in connection with the Works; and(ii) register and perfect a personal property security interest in relation to any goods that are supplied in connection with the Works and the Client agrees to provide all assistance reasonably required by Sittis to facilitate registration.8 Variations 8.1 Notice of matters impacting on the WorksIf the Client becomes aware of any matter which:(a) is likely to change, or which has changed the scope or timing of the Works;(b) any errors, inadequacies, or deficiencies in any of the Contract Documents; or(c) involves any error, omission or defect in any continuing or completed Works or any other matter in relation to the Works, then the Client must within 10 Business Days give written notice of that matter to Sittis containing, as far as practicable in the circumstances:(a) particulars of the change, error, omission or defect;(b) its likely impact; and (c) the Client’s recommendation as to how to minimise its impact upon the scope or timing of the Works.8.2 What constitutes VariationThe parties agree that the following events are events of Variations:(a) Any notice given to the Client under clause 8.1 or 8.3;(b) costs incurred by Sittis for compliance with any law, regulations or standards which Sittis must comply with and was not reasonably aware of prior to providing the Quotation (including addressing governmental notices, fines and charges);(c) costs incurred by Sittis due to incorrect details, information and/or documents provided by the Client, including the Contract Documents;(d) any changes to the Works from the Variation Notice given under clause 8.3;(e) costs incurred by Sittis due to delays caused by a Qualifying Cause of Delay;(f) extra costs incurred by Sittis under clause 9; or(g) for a reason outside the control of Sittis, it otherwise becomes necessary for Sittis to provide additional works outside the Works.8.3 Variation in the Works(a) If the Client requires Sittis to perform additional works outside the scope of the Works, the Client must provide a written notice to Sittis specifying details and information about the additional works (“Variation Notice”).(b) Within 10 Business Days of receiving a Variation Notice, Sittis will provide the Client with a revised Contract Sum.(c) Within 10 Business Days of receiving the revised Contract Sum, the Client must, in writing, advise Sittis whether it accepts the same.(d) If the Client fails to respond within the timeframe given in clause 8.3(c), then the Client is deemed to have accepted the revised Contract Sum.8.4 Adjustment of Contract Sum(a) If the Works are varied in accordance with clauses 8.2 or 8.3, and the result is an increase in the Contract Sum, the total value of the Variation (including the Builder’s Margin) will be added to the Contract Sum.(b) If the Works are varied in accordance with clauses 8.2 or 8.3, and the result is a decrease in the Contract Sum, the total value of the Variation (excluding the Builder’s Margin) will be deducted from the Contract Sum.9 Site Conditions9.1 Notification of Latent Conditions(a) Upon becoming aware of a Latent Condition while carrying out the Works, Sittis shall within 5 Business Days, and where possible before the Latent Condition is disturbed, give the Client written notice of the following:(i) the Latent Condition encountered;(ii) the additional work, resources, time and cost which Sittis estimates to be necessary to deal with the Latent Condition; and(iii) other details reasonably required by the Client.(b) Upon receipt of a notice referred to in clause 9.1(a), the Client must direct Sittis as to the course of action to be followed.9.2 Latent Conditions a VariationThe cost of rectifying or dealing with any Latent Condition will be treated as a Variation and dealt with in accordance with clause 8.10 Protection of People and Property10.1 Sittis and the Client to take stepsSittis and the Client will:(a) take all measures necessary to protect people and property;(b) avoid unnecessary interference with the passage of people and vehicles; and(c) prevent nuisance and unreasonable noise and disturbance.11 Work Health and Safety and the Environment11.1 Work Health and Safety and the EnvironmentBoth parties must:(a) comply with the Work Health and Safety Laws and Environment Laws; and(b) immediately comply with directions from any relevant Authority.12 Defects12.1 Defects Liability PeriodDuring the Defects Liability Period, subject to the Client:(a) notifying Sittis in writing of a Defect within the Defects Liability Period; and(b) having fully paid the Contract Sum to Sittis in accordance with this Agreement,Sittis will, without any further cost to the Client, repair or replace all Defects as soon as practicable.12.2 Limited LiabilityNotwithstanding any other clause of this Agreement in contrary, Sittis does not have to repair or rectify:(a) minor defects;(b) any defects in relation to scaffolding;(c) any defects in relation to silicone works;(d) any defects covered under the supplier’s and/or manufacturer’s warranty; and(e) any consequential, indirect or special loss or damage which arises from a Defect.12.3 Non-complying works and DefectsThe Client may only engage an alternative contractor to complete Defects or non-complying Works if:(a) the Client provides Sittis with a written notification requesting Sittis rectify the Defects and/or the non-complying Works; and (b) Sittis fails to rectify the Defects and/or the non-complying Works within 60 Business Days after receipt of a notice referred to in clause 12.3(a).13 Time and Progress13.1 ProgressSittis must ensure that the Works reach Completion by the Date for Completion, subject to clause 13.2.13.2 Claim for an Extension of TimeSittis is entitled to any numbers of extensions of time (“Extension of Time”) for carrying out the Works if:(a) Sittis is or will be delayed in reaching Completion by the Date for Completion due to a Qualifying Cause of Delay; and(b) Sittis gives the Client notice, within the period specified in Item 11 of the Contract Particulars of when Sittis became or should have become aware of the Qualifying Cause of Delay, a written claim for an Extension of Time detailing the facts of causation and of the delay to the Works, including the new Date for Completion.14 Assignment and Novation14.1 Assignment by the ClientThe Client must:(a) not assign, transfer, mortgage, charge or encumber any right or obligation under this Agreement without the prior written consent of Sittis, which consent Sittis may give or withhold in its absolute discretion; and(b) agrees that any such assignment, transfer, mortgage, charge or encumbrance will not operate to release or discharge the Client from any obligation or liability under this Agreement.14.2 Assignment by SittisSittis:(a) may assign, transfer, mortgage, charge or encumber any right or obligation under this Agreement without the prior written consent of the Client; and(b) will notify the Client of any such action.15 Intellectual Property15.1 Intellectual PropertyCopyright in any Documents supplied or provided by Sittis to the Client belong to Sittis and the Client must not reproduce or use any Documents, in whole or in part, other than for the purpose of completing its obligations under this Agreement.16 Avoidance of Conflict16.1 Dispute notice If a dispute or difference arises between the parties in respect of any fact, matter or thing arising out of this Agreement, either party may give a notice (“Dispute Notice”) in writing to the other party specifying:(a) particulars of the dispute or difference; and(b) the position which the party believes is correct.16.2 Parties to meet The dispute or difference identified in the Dispute Notice is to be referred to the Client and Sittis who must:(a) within 5 Business Days of service of a Dispute Notice, meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference; and(b) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.16.3 Reference to Expert If the parties cannot resolve, or agree upon a procedure to resolve, the dispute or difference within 10 Business Days after the date a Dispute Notice is given, or within such longer period of time as the parties may agree in writing, the dispute or difference is to be submitted to an expert appraisal in accordance with clauses 16.4 to 16.8.16.4 Appointment of ExpertThe parties must within 10 Business Days from the date a Dispute Notice is given agree the identity of the Independent Expert, who failing which at the expiry of that period, will be a person appointed by the President for the time being of the Institute of Arbitrators & Mediators, Australia at the request of either party.16.5 Expert appraisalThe expert appraisal:(a) is to be conducted by the Independent Expert;(b) is not an arbitration so that the Independent Expert may reach a decision from his or her own knowledge and expertise; and(c) unless otherwise agreed between the parties, must be concluded within 20 Business Days from the acceptance by the Independent Expert of his or her appointment. 16.6 Independent ExpertThe Independent Expert must:(a) be appointed under an agreement with the parties containing terms reasonably required by the Independent Expert, including:(i) a release of any liability which the Independent Expert may otherwise incur for any act or omission, other than actual fraud, during the course of the appraisal; and(ii) a term that the parties will pay the Independent Expert's costs;(b) before acceptance of appointment, warrant to the parties that he or she has no interest in the outcome of the appraisal or any other conflict of interest; (c) give an adequate opportunity to the parties to make submissions in relation to the dispute or other matter including submissions in reply; and(d) not communicate with one party to the appraisal without the knowledge of the other.16.7 Determination The determination of the Independent Expert:(a) must be in writing;(b) will be final and binding on the parties; and(c) must be given effect to by the parties in accordance with its terms.16.8 Costs of appraisalIf the Independent Expert does not make a determination as to the payment of the costs of a determination:(a) the parties must equally bear the costs of the Independent Expert (including the Independent Expert's costs of engaging and consulting advisers, if any); and(b) each party must bear its own costs and disbursements relating to the determination.16.9 Condition precedent It is a condition precedent to a party’s entitlement to bring any court proceeding (other than for urgent interlocutory relief) in respect of a dispute that the parties have first complied with the procedures set out in this clause 16.16.10 Suspension of performance The parties must, unless otherwise agreed, suspend to perform their obligations under this Agreement despite the existence of a dispute to which this clause 16 applies.16.11 Part to survive terminationThis clause 16 will survive the completion of the Works.17 Termination by the Client17.1 Notice of breachIf Sittis commits a breach of this Agreement, the Client may give written notice to Sittis:(a) specifying the breach; and(b) requiring its rectification within 20 Business Days.17.2 Termination for breachIf Sittis fails to rectify the breach within the period specified in the notice issued under clause 17.1, the Client may, without prejudice to any other right of the Client:(a) immediately terminate this Agreement; or(b) take out of Sittis’ hands the whole or part of the Works remaining to be completed and suspend payment until the relevant breach has been remedied to reasonable satisfaction of the Client.17.3 Termination for insolvencyWithout affecting any other right which the Client may have, to the extent permitted by law, the Client may terminate this Agreement, by notice in writing to Sittis, if an Insolvency Event occurs in respect of Sittis.17.4 Payment on TerminationIf this Agreement is terminated under clause 17.2(a), then, without prejudice to any other right of the Client at law or under this Agreement, Sittis may serve on the Client the final Progress Claim under clause 7, regarding the date of termination of Agreement as the Date of Completion.18 Termination by Sittis18.1 Notice of breachIf the Client commits a breach of this Agreement, Sittis may give written notice to the Client:(a) specifying the breach; and(b) requiring its rectification within 20 Business Days.18.2 Termination for breachIf the Client fails to rectify the breach within the period specified in the notice issued under clause 18.1, Sittis may, without prejudice to any other right of Sittis, immediately terminate this Agreement.18.3 Termination for insolvencyWithout affecting any other right which Sittis may have, to the extent permitted by law, Sittis may terminate this Agreement, by notice in writing to the Client, if an Insolvency Event occurs in respect of the Client.18.4 Payments by the Client on Termination(a) Sittis may render the Client an Invoice for the Works performed and goods supplied as at the date of termination, including any items which are ordered on behalf of the Client and are not normally stocked by Sittis which cannot be returned to the relevant supplier; and(b) the Client must pay Sittis all outstanding Invoices, relevant to Contract Sum, immediately upon the date of termination.18.5 Indemnity for breachWithout affecting any other indemnity or rights under this Agreement, if the Client is in breach of any of its obligations under this Agreement, the Client must indemnify Sittis against all Claims, loss or damage suffered by Sittis as a consequence of that breach.18.6 Termination for convenienceNotwithstanding anything to the contrary in this Agreement, Sittis may, at any time, terminate this Agreement for convenience (with or without any reason) upon giving the period of notice specified in Item 14 of the Contract Particulars in writing to the Client. 19 Notices19.1 Method of noticeUnless this Agreement provides to the contrary, a communication in connection with this Agreement must be in writing and may (in addition to any other lawful or effective means of service) be given or served:(a) by being left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the addressee’s address specified in Items 12 and 13 of the Contract Particulars or if the addressee notifies another address, to that address; or(b) by email to the addressee’s email address specified in Items 12 and 13 of the Contract Particulars or if the addressee notifies another email address, to that email address.19.2 EffectA communication takes effect from the later of the time it is received and the time specified in it.19.3 ReceiptA letter or email is taken to be received:(a) if a letter, on the 2nd Business Day after posting; and(b) if by email, on the day the email was sent, unless an automatic reply email is received by the sender indicating that the email recipient has not received the email.20 General20.1 Entire agreementThis Agreement constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, either oral or written, made or entered into between the parties prior to the date of this Agreement with respect to the subject matter of this Agreement.20.2 Governing laws This Agreement will be governed by, and construed in accordance with, the laws for the time being in force in the Jurisdiction and the parties submit to the jurisdiction of the courts of the Jurisdiction.20.3 Civil Liability LegislationTo the extent permitted by law the operation of Civil Liability Legislation is excluded under the Agreement. The rights, obligations and liabilities of the parties are as set out in this Agreement.20.4 ChargeThe Client charges the Site and the Works (including any tangible goods from the Works) with the payment to Sittis of all monies payable to Sittis under this Agreement, or otherwise from the carrying out of the Works. 20.5 GSTThe parties acknowledge that any Consideration specified in this Agreement is exclusive of GST and that a party (‘recipient’) providing that Consideration to the other party (unless otherwise stated) (‘supplier’) for any Taxable Supply made by the supplier under this Agreement, must:(a) at the same time as the Consideration is provided for that supply;(b) but subject to the provision by the supplier to the recipient of a Tax Invoice for that supply;pay to the supplier, an additional amount equal to the GST payable in respect of that supply, provided that, where the recipient is required to reimburse or pay to the supplier, an amount calculated by reference to a cost, expense or other amount paid or incurred by the supplier, the amount of reimbursement or payment will be reduced by the amount of any input tax credits to which the supplier is entitled for the acquisition relating to that cost, expense or other amount.20.6 Personal Property Securities Act 2009 (Cth)This Agreement will be taken to be a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) to the extent that Sittis wishes to take out a security interest to secure any payment, or the performance of any obligation, under or in connection with this Agreement.20.7 Waiver (a) Any delay or failure to enforce any provision of these Terms will not be deemed to be a waiver.(b) There is no implied waiver by either party in respect of any provision of these Terms and any waiver granted by either party is without prejudice to any other rights.(c) Any waiver must be in writing and does not cover subsequent breaches of the same or a different kind.(d) A waiver by a party of its rights under these terms is only effective in relation to the particular obligation or breach in respect of which it is given.20.8 No RelianceEach party warrants that in entering into this Agreement he, she or it has not relied on any statement, representation, promise, warranty, conduct or inducement made or given or offered by the other party or any person or agent on behalf of that other party, other than those expressly contained in this Agreement, but has instead determined to enter into this Agreement of his, her or its own free will and volition upon his, her or its own assessment, after having obtained independent advice from his, her or its own advisers.20.9 RelationshipSittis is and always will be an independent contractor to the Client for the purposes of the Works to be performed by Sittis. Nothing in these Terms is intended to be or is implied to create a relationship of agency, employment, partnership or joint venture.20.10 Force MajeureIf the performance or observance of any of the Sittis’ obligations are prevented, restricted or affected by reason of a Force Majeure event, Sittis may, in its absolute discretion give prompt notice of that cause to the Client, which, on delivery of that notice Sittis are excused from such performance or observance to the extent of the relevant prevention, restriction of affection.20.11 Electronic Transactions Act 2001 (ACT)Each Party gives its consent to executing this Agreement and any relevant documents in an electronic form, for so long as when signed by an individual, must have an adult witness to witness the signature of that person.
Operative Provisions1 Interpretation1.1 Glossary of terms Unless the context indicates otherwise, when used in this Agreement, each word or phrase defined in this clause 1.1 (‘Glossary of terms’) has the meaning given to it in this clause 1.1 (‘Glossary of terms’).Agreement means this agreement, including any Special Conditions and any schedule, exhibit or annexure as attached. Approval includes any consent, authorisation, registration, filing, agreement, notification, certificate, permission, licence, approval, permit, authority or exemption by from or with any Authority in relation to the Works, but excludes certificate of occupancy and use unless otherwise agreed between parties in writing. Authority includes any ministry, department, government, local government, governmental or semi-governmental authority, agency, instrumentality, corporation, any other legal entity with legislative or administrative authority, and all utilities (whether government owned or otherwise) having a responsibility or jurisdiction in relation to the Works.Builder’s Margin means, if applicable, the agreed sum (or a percentage) as set out in the Quotation.Business Day means any day which is not a Saturday, Sunday or a public holiday in the Jurisdiction.Civil Liability Legislation means any law in the Jurisdiction which makes provisions for proportionate liability of persons for apportionable claims.Claim includes any claim for an increase in the Contract Sum, for payment of money (including damages), or for an Extension of Time:(a) under, arising out of, or in any way in connection with, this Agreement, including any direction of the Client;(b) arising out of, or in any way in connection with, the Works or either party’s conduct before this Agreement; or(c) otherwise at law or in equity including:(i) by statute;(ii) in tort for negligence or otherwise, including negligent misrepresentation; or(iii) for restitution.Completion is that stage when the Works are complete, free from all but minor defects (in Sittis’ reasonable opinion) and fit for use and occupation by the Client for their intended use and purpose.Confidential Information means information that:(d) is, by its nature, confidential;(e) is designated by the Client as confidential;(f) is marked ‘Confidential’, ‘Commercial-in-Confidence’ or with any other description which would indicate that it is confidential; or(g) Sittis knows, or ought to know, is confidential;but does not include information which:(h) by law is required to be disclosed; or(i) is, or becomes, public knowledge other than by:(i) a breach of any undertaking by Sittis; or(ii) any other unlawful means.Consideration has the meaning given to that term by the GST Law.Consultant includes an architect, engineer, quantity surveyor, surveyor, lawyer, accountant, insurance consultant or other qualified expert appointed from time to time as a consultant by the Client or Sittis.Contract Documents means all Documents provided by the Client to Sittis, including this Agreement and the documents specified in Schedule 2, the Quotation, the Purchase Order and all Documents brought, or required to be brought, into existence by Sittis as part of, or for the purpose of, performing the Works.Contract Particulars means the particulars specified in Schedule 1.Contract Sum means the total sum as calculated in Item 5 of the Contract Particulars, to be paid to Sittis by the Client in accordance with this Agreement.Date for Possession of the Site means the date specified in Item 7 of the Contract Particulars.Date for Completion means the date specified in Item 6 of the Contract Particulars as adjusted in accordance with this Agreement.Date of Completion means the actual date of Completion.Defects means any defect, shrinkage, deficiency, fault or omission in the Works including any aspect of the Works which is not in accordance with the requirements of this Agreement.Defects Liability Period means the period specified in Item 10 of the Contract Particulars.Dispute Notice means the notice issued in accordance with clause 16.1.Documents include documents, equipment, software (including source code and object code), reports, technical information, plans, charts, drawings, calculations, tables, schedules and data (stored by any means), and includes all copies and extracts of the same.Environment means the components of the earth, including:(j) land, air and water; and(k) any layer of the atmosphere; and(l) any organic or inorganic matter and living organism; and(m) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a) to (c) inclusive.Environment Laws means all laws regulating, or relating to, the Environment, including the Environment Protection Act 1997 (ACT) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).Extension of Time has the meaning given in clause 13.2.Force Majeure means any of the following:(a) war and civil commotion;(b) earthquakes;(c) fire and explosions not contributed to by Sittis, its servants, agents or Trade Contractors;(d) the commencement of litigation against the Client or Sittis or the threat of litigation against the Client or Sittis by any one or more adjoining or neighbouring owners or occupiers which does not result from any negligent act or omission or material default by Sittis in the performance of its obligations under this Agreement;(e) the direction by any Court or competent Authority that the Works cease for any reason except to the extent that those events are caused or contributed to by the deliberate or negligent act, omission or default under any agreement or contract of Sittis or any of its employees, officers, agents or contractors; or(f) labour shortage caused by plague, viral outbreak or other epidemics, mandatory quarantines, production bans, city-wide lockdowns and embargoes.GST has the meaning given to that term by the GST Law.GST Law has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).Government means the Territory, State or the Commonwealth of Australia, as applicable.Independent Expert means the independent expert appointed in accordance with clause 16.6Insolvency Event means:(a) in the case of an individual or partnership:(i) the commission of an act of bankruptcy by a person under any Act;(ii) the entering into of any arrangement, or the transfer of any assets, for the benefit of creditors;(iii) an admission from the party that any debts of the party cannot be repaid; or(iv) anything analogous or of substantially the same effect to any of the events described above; and(b) in the case of a corporation:(i) the party becomes an externally-administered body corporate under the Corporations Act 2001 (Cth);(ii) steps are taken by any person towards making the party an externally-administered body corporate under the Corporations Act 2001 (Cth); or(iii) the party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act 2001 (Cth).Intellectual Property Rights means:(a) all rights in copyright, trade marks (including service marks), trade and service names, designs, circuit layouts, patents, inventions, discoveries and rights of confidence; (b) all Moral Rights; and(c) all other rights or forms of protection of a similar nature or having similar or equivalent effect to any of them, whether under international convention or otherwise, that may subsist anywhere in the world, whether current or future or registered (including applications for any of the above) or unregistered.Invoice means a Tax Invoice issued by Sittis to the Client for the Works performed by Sittis which must include the Works to which the invoice relates, the amount claimed and whether or not it is claimed pursuant to the Security of Payments Law;Jurisdiction means the jurisdiction in the State or Territory in which the Site is located;Land means the land specified in Item 8 of the Contract Particulars.Latent Conditions means the physical conditions on or under the Site and its near surrounds, which differ materially from the physical conditions which should reasonably have been anticipated by a competent builder having inspected the Site at the earlier of the date of submission of any tender offer or the Start Date.Moral Rights has the meaning given under the Copyright Act 1968 (Cth).Progress Claim has the meaning in clause 7.2Progress Claim Date has the meaning stated in Item 9 of the Contract Particulars.Purchase Order means the order for goods and materials required for the Works submitted by the Client to Sittis in writing, annexed herewith in Schedule 2.Qualifying Cause of Delay means the following causes of delay:(a) an act, default or omission of the Client or its consultants, agents or other contractors (not being employed by Sittis) in breach of this Agreement; or(b) a qualifying cause of delay stated in Item 11 of the Contract Particulars occurring before the Date of Completion.Quotation means the proposal or quotation submitted by Sittis to the Client outlining the scope of the Works, any special conditions attaching to the Works and which provides an estimate of the Contract Sum, annexed herewith in Schedule 2.Security of Payments Laws means the laws relating to security of payments in the building and construction industry in the Jurisdiction, including Building and Construction Industry (Security of Payment) Act 2009 (ACT), the Building and Construction Industry Security of Payment Act 1999 (NSW) or equivalent legislation in the State or Territory where the Services are performed.Site means:(a) the Land; and (b) those other contiguous lands,which are agreed between the Client and Sittis to be reasonably necessary for the carrying out of the Works.Sittis’ Activities means all things that Sittis has done in relation to the Works (whether before or after the date of this Agreement), or is required to do in relation to the Works, to comply with its obligations under this Agreement.Special Conditions means the Special Conditions attached to this Agreement at Schedule 3. Start Date means the date that the Sittis will commence the Works as specified in Item 4 of the Contract Particulars.Statute means any act, ordinance, order, rule, regulation, by-law, manual or other legislative or subordinate legislative instrument, and includes any industrial agreement, scheme, undertaking, code or award and also includes any replacement or amendment from time to time.Taxable Supply has the meaning given to that term by the GST Law.Tax Invoice has the meaning given to that term by the GST Law, and includes a recipient created tax invoice.Territory means: (a) when used in a geographical sense, the Australian Capital Territory; and (b) when used in any other sense, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).Trade Contract means any contract or other arrangement entered into between Sittis and a Consultant or Trade Contractor for the installation/construction of any part of the Works.Trade Contractor means any person engaged by Sittis in accordance with this Agreement to perform any part of the Trade Work.Trade Cost means the sum of all amounts payable to Trade Contractors for Trade Work.Trade Work means that part of the Sittis’ Activities for which Sittis must engage Trade Contractors.Variation means any change to the Works including an omission of any part of the Works as specified in clause 8.Work Health and Safety Laws means all laws relating to workplace health, safety and rehabilitation management in the Jurisdiction.Works means the work (including supply and installation) which Sittis is or may be required to carry out and complete under this Agreement and as detailed in the Contract Documents, and includes Variations, remedial work, construction plant and temporary works and any works to be performed to discharge the Sittis’ obligations under this Agreement, but excludes obtaining any certificate of occupancy and use and designing, unless otherwise specified in the Contract Documents.1.2 InterpretationIn this Agreement:(a) headings are for convenience only and do not affect interpretation;(b) any Special Conditions will, to the extent they are inconsistent with terms herein, take precedence over these terms;and, unless the context indicates a contrary intention:(c) words denoting the singular number include the plural and vice versa;(d) a reference to ‘person’ includes individuals, firms, companies, associations (incorporated or not incorporated), corporations, governments, government and statutory bodies and other entities;(e) references to parts or clauses are references to parts or clauses of this Agreement;(f) a reference to a part means a group of clauses all commencing with the same whole number;(g) references to this Agreement and any deed, agreement or instrument are deemed to include references to this Agreement or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;(h) references to any party to this Agreement include its successors or permitted assigns;(i) words denoting any gender include all genders;(j) a reference to any legislation or to any section or provision of any legislation includes any statutory modification or re-enactment of, or any statutory provision substituted for, that legislation, section or provision, and ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision;(k) a reference to ‘$’ is to Australian currency;(l) the words ‘including’ and ‘includes’, and other cognate expressions, indicate what is included without limiting what may be included;(m) no rule of construction applies to the disadvantage of a party on the basis that the party puts forward this Agreement or any part of it;(n) whenever a party is required to indemnify the other, any indemnity will extend to the officers, employees and agents of the party to be indemnified;(o) an obligation of a party to do any act or thing may be satisfied by that party procuring another person to do that act or thing; (p) the word ‘consent’ includes approval or agreement; and(q) an obligation of a party not to do any act or thing shall be construed to include an obligation of that party:(i) not to permit that act or thing to be done; and(ii) to use its best endeavours to prevent that act or thing being done by another person.2 Engagement2.1 Appointment and acceptanceThe Client agrees to exclusively engage Sittis to carry out the Works on and from the Start Date in accordance with the terms of this Agreement, which Sittis accepts.2.2 ConsiderationIn consideration of Sittis agreeing to complete the Works, the Client will pay Sittis the Contract Sum and any other amounts which are payable by the Client to Sittis in accordance with this Agreement.2.3 Contract SumThe Client must pay Sittis the Contract Sum in the manner as set out in this Agreement.3 Role of Sittis3.1 Sittis’ ObligationsSittis must as soon as practicable, following the Start Date, commence the Works.3.2 PerformanceSittis must:(a) carry out and complete the Works in accordance with this Agreement; and(b) subject to the terms of this Agreement, complete the Works by the Date for Completion.3.3 Standard of careSittis must:(a) exercise the standard of skill, care and diligence in the performance of the Works that would be expected of a competent professional person with experience and expertise in carrying out works similar to the Works; (b) use good quality and ‘fit for purpose’ materials as specified in the Contract Documents;(c) if required, use only qualified, experienced and competent personnel to perform the Works; and(d) keep the Client fully and regularly informed about all matters affecting or relating to the Works. 3.4 Sittis’ acknowledgementsSittis acknowledges and warrants to the Client that it will carry out and complete the Works:(a) in a proper and workmanlike manner; (b) pursuant to the terms of this Agreement; and(c) in compliance with all applicable laws of the relevant jurisdiction.3.5 No warrantiesTo the extent permitted by law, Sittis’ does not make any warranties in relation to:(a) all part of the Works covered under a supplier’s or manufacturer’s warranty;(b) any silicone works undertaken by Sittis;(c) any issues of the Works relating to Intellectual Property Rights;(d) any part of the Works which the Client modifies in any way without Sittis’ prior written consent; (e) any part of the Works damaged, caused or contributed by the Client; (f) any part of the Works not undertaken by Sittis; and(g) any part of the Works damaged or lost as a result of the Client breaching or otherwise failing to observe its obligations in this Agreement.4 Role of the Client4.1 Information(a) The Client agrees and warrants that all Contract Documents provided to Sittis prior to the date of the Quotation, and this Agreement are true, correct and accurate.(b) The Client must make available to Sittis all information, including documents and particulars, relating to the Works and the Contract Documents at any time.(c) The Client must inform Sittis of any changes to the information, including Contract Documents and particulars relating to the Works and the Quotation, as soon as the Client is made aware. 4.2 Access The Client must:(a) On the Date for Possession of the Site, provide Sittis with clear and safe access, as required by Sittis, to the Site to enable Sittis to carry out the Works in accordance with this Agreement; (b) arrange access to any other property which may be necessary for Sittis to carry out the Works; (c) continue to provide Sittis with access under clause 4.2(a) and (b) until such access is no longer required by Sittis; (d) authorise Sittis to allow or refuse anyone access to the area subject to the Works, and to order unauthorised people away from the Site; and(e) secure any animals so they do not interfere with, or prevent Sittis from access to the Site.5 Trade ContractsThe Client acknowledges and agrees that Sittis may enter into Trade Contracts with respect to any part of the Works and assign or novate any of its obligations under this Agreement to any Trade Contractor.6 Insurance and IndemnitySittis must, at its own cost, effect and maintain professional indemnity, public liability, and workers compensation insurance for the duration of the Works.7 Completion and Payments7.1 Lodgement of Progress ClaimOn or before each Progress Claim Date, Sittis must deliver the Client a progress claim (“Progress Claim”) and an Invoice for the amount in the Progress Claim, plus any GST payable.7.2 Progress Claim Each Progress Claim must show:(a) the Works to which the Progress Claim relates; and(b) the amount of the Progress Claim (showing separately the applicable lump sum components of the Contract Sum); and(c) the percentage completion of each section or element of the Works.7.3 Progress Claim on the Date of CompletionIn respect of the Progress Claim submitted by Sittis on the Date of Completion, that Progress Claim must also include:(a) all amounts which Sittis claims from the Client on account of all amounts payable under this Agreement; and(b) any other amounts which Sittis claims from the Client,in respect of any fact, matter or thing arising out of, or in any way in connection with, the Works or this Agreement which occurred prior to the Date of Completion.7.4 Consideration of Progress ClaimWithin 10 Business Days after the relevant Progress Claim Date, the Client must deliver to Sittis a certificate (“Final Certificate”):(a) identifying the Progress Claim to which it relates;(b) certifying the amount for payment (“Certified Amount”); and(c) where the Certified Amount is less than the amount in the Progress Claim:(i) an explanation of the differences; and(ii) if the Certified Amount is less than the amount claimed in the Progress Claim because the Client is withholding payment for any reason, the Client’s reason for withholding payment. 7.5 Disputes concerning Progress ClaimsSittis may refer the rejection of any part of a Progress Claim for determination under clause 16.7.6 PaymentThe Client must pay Sittis the amount set out in the Invoice referred to in clause 7.1 within 5 Business Days of receipt.7.7 Final Certificate (a) The Final Certificate will be conclusive evidence that the Works have been completed satisfactorily, and the discharge of each party’s obligations in connection with the subject matter of this Agreement, except for:(i) any failure, Defect or other problem arising in relation to any matter arising in relation to a warranty during any warranty period that extends beyond the date of issue of the Final Certificate;(ii) fraud or dishonesty relating to the Works or any part thereof or to any matter dealt with in the Final Certificate;(iii) any accidental or erroneous inclusion or exclusion of any Work or figures in any computation or an arithmetical error in any computation; and(iv) unresolved issues the subject of any Dispute Notice served in accordance with clause 16 that is served within 5 Business Days after the issue of the Final Certificate.(b) If the Client fails to serve the Final Certificate on Sittis as required in clause 7.4, then the Client is deemed to have served the Final Certificate on Sittis which the Certified Amount equates to the total amount claimed in the relevant Progress Claim. 7.8 Title and Security(a) The title to and beneficial interest in any goods that are supplied in connection with the Works will remain solely with Sittis until full payment of the Contract Sum is received. Upon full payment of the Contract Sum, title to and beneficial interest will pass from Sittis to the Client.(b) Notwithstanding clause 7.8(a), risk in the goods that comprise the Works passes to the Client upon delivery to the Site and therefore the Client is required to maintain adequate insurance over the Site including the goods that are supplied in connection with the Works. The Client has an obligation to keep the goods that are supplied in connection with the Works safe, free from deterioration, destruction, loss or harm prior to transfer of the title.(c) The Client hereby agrees to indemnify and keep indemnified Sittis from all loss, liability or expenses incurred by Sittis or any third party in relation to a breach by the Client of clauses 7.8(a) and 7.8(b).(d) Sittis reserves all its right, including under the Personal Property Securities Act 2009 (Cth), to:(i) enter the Site without liability for trespass or any resulting damage and retake possession of the goods supplied in connection with the Works; and(ii) register and perfect a personal property security interest in relation to any goods that are supplied in connection with the Works and the Client agrees to provide all assistance reasonably required by Sittis to facilitate registration.8 Variations 8.1 Notice of matters impacting on the WorksIf the Client becomes aware of any matter which:(a) is likely to change, or which has changed the scope or timing of the Works;(b) any errors, inadequacies, or deficiencies in any of the Contract Documents; or(c) involves any error, omission or defect in any continuing or completed Works or any other matter in relation to the Works, then the Client must within 10 Business Days give written notice of that matter to Sittis containing, as far as practicable in the circumstances:(a) particulars of the change, error, omission or defect;(b) its likely impact; and (c) the Client’s recommendation as to how to minimise its impact upon the scope or timing of the Works.8.2 What constitutes VariationThe parties agree that the following events are events of Variations:(a) Any notice given to the Client under clause 8.1 or 8.3;(b) costs incurred by Sittis for compliance with any law, regulations or standards which Sittis must comply with and was not reasonably aware of prior to providing the Quotation (including addressing governmental notices, fines and charges);(c) costs incurred by Sittis due to incorrect details, information and/or documents provided by the Client, including the Contract Documents;(d) any changes to the Works from the Variation Notice given under clause 8.3;(e) costs incurred by Sittis due to delays caused by a Qualifying Cause of Delay;(f) extra costs incurred by Sittis under clause 9; or(g) for a reason outside the control of Sittis, it otherwise becomes necessary for Sittis to provide additional works outside the Works.8.3 Variation in the Works(a) If the Client requires Sittis to perform additional works outside the scope of the Works, the Client must provide a written notice to Sittis specifying details and information about the additional works (“Variation Notice”).(b) Within 10 Business Days of receiving a Variation Notice, Sittis will provide the Client with a revised Contract Sum.(c) Within 10 Business Days of receiving the revised Contract Sum, the Client must, in writing, advise Sittis whether it accepts the same.(d) If the Client fails to respond within the timeframe given in clause 8.3(c), then the Client is deemed to have accepted the revised Contract Sum.8.4 Adjustment of Contract Sum(a) If the Works are varied in accordance with clauses 8.2 or 8.3, and the result is an increase in the Contract Sum, the total value of the Variation (including the Builder’s Margin) will be added to the Contract Sum.(b) If the Works are varied in accordance with clauses 8.2 or 8.3, and the result is a decrease in the Contract Sum, the total value of the Variation (excluding the Builder’s Margin) will be deducted from the Contract Sum.9 Site Conditions9.1 Notification of Latent Conditions(a) Upon becoming aware of a Latent Condition while carrying out the Works, Sittis shall within 5 Business Days, and where possible before the Latent Condition is disturbed, give the Client written notice of the following:(i) the Latent Condition encountered;(ii) the additional work, resources, time and cost which Sittis estimates to be necessary to deal with the Latent Condition; and(iii) other details reasonably required by the Client.(b) Upon receipt of a notice referred to in clause 9.1(a), the Client must direct Sittis as to the course of action to be followed.9.2 Latent Conditions a VariationThe cost of rectifying or dealing with any Latent Condition will be treated as a Variation and dealt with in accordance with clause 8.10 Protection of People and Property10.1 Sittis and the Client to take stepsSittis and the Client will:(a) take all measures necessary to protect people and property;(b) avoid unnecessary interference with the passage of people and vehicles; and(c) prevent nuisance and unreasonable noise and disturbance.11 Work Health and Safety and the Environment11.1 Work Health and Safety and the EnvironmentBoth parties must:(a) comply with the Work Health and Safety Laws and Environment Laws; and(b) immediately comply with directions from any relevant Authority.12 Defects12.1 Defects Liability PeriodDuring the Defects Liability Period, subject to the Client:(a) notifying Sittis in writing of a Defect within the Defects Liability Period; and(b) having fully paid the Contract Sum to Sittis in accordance with this Agreement,Sittis will, without any further cost to the Client, repair or replace all Defects as soon as practicable.12.2 Limited LiabilityNotwithstanding any other clause of this Agreement in contrary, Sittis does not have to repair or rectify:(a) minor defects;(b) any defects in relation to scaffolding;(c) any defects in relation to silicone works;(d) any defects covered under the supplier’s and/or manufacturer’s warranty; and(e) any consequential, indirect or special loss or damage which arises from a Defect.12.3 Non-complying works and DefectsThe Client may only engage an alternative contractor to complete Defects or non-complying Works if:(a) the Client provides Sittis with a written notification requesting Sittis rectify the Defects and/or the non-complying Works; and (b) Sittis fails to rectify the Defects and/or the non-complying Works within 60 Business Days after receipt of a notice referred to in clause 12.3(a).13 Time and Progress13.1 ProgressSittis must ensure that the Works reach Completion by the Date for Completion, subject to clause 13.2.13.2 Claim for an Extension of TimeSittis is entitled to any numbers of extensions of time (“Extension of Time”) for carrying out the Works if:(a) Sittis is or will be delayed in reaching Completion by the Date for Completion due to a Qualifying Cause of Delay; and(b) Sittis gives the Client notice, within the period specified in Item 11 of the Contract Particulars of when Sittis became or should have become aware of the Qualifying Cause of Delay, a written claim for an Extension of Time detailing the facts of causation and of the delay to the Works, including the new Date for Completion.14 Assignment and Novation14.1 Assignment by the ClientThe Client must:(a) not assign, transfer, mortgage, charge or encumber any right or obligation under this Agreement without the prior written consent of Sittis, which consent Sittis may give or withhold in its absolute discretion; and(b) agrees that any such assignment, transfer, mortgage, charge or encumbrance will not operate to release or discharge the Client from any obligation or liability under this Agreement.14.2 Assignment by SittisSittis:(a) may assign, transfer, mortgage, charge or encumber any right or obligation under this Agreement without the prior written consent of the Client; and(b) will notify the Client of any such action.15 Intellectual Property15.1 Intellectual PropertyCopyright in any Documents supplied or provided by Sittis to the Client belong to Sittis and the Client must not reproduce or use any Documents, in whole or in part, other than for the purpose of completing its obligations under this Agreement.16 Avoidance of Conflict16.1 Dispute notice If a dispute or difference arises between the parties in respect of any fact, matter or thing arising out of this Agreement, either party may give a notice (“Dispute Notice”) in writing to the other party specifying:(a) particulars of the dispute or difference; and(b) the position which the party believes is correct.16.2 Parties to meet The dispute or difference identified in the Dispute Notice is to be referred to the Client and Sittis who must:(a) within 5 Business Days of service of a Dispute Notice, meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference; and(b) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.16.3 Reference to Expert If the parties cannot resolve, or agree upon a procedure to resolve, the dispute or difference within 10 Business Days after the date a Dispute Notice is given, or within such longer period of time as the parties may agree in writing, the dispute or difference is to be submitted to an expert appraisal in accordance with clauses 16.4 to 16.8.16.4 Appointment of ExpertThe parties must within 10 Business Days from the date a Dispute Notice is given agree the identity of the Independent Expert, who failing which at the expiry of that period, will be a person appointed by the President for the time being of the Institute of Arbitrators & Mediators, Australia at the request of either party.16.5 Expert appraisalThe expert appraisal:(a) is to be conducted by the Independent Expert;(b) is not an arbitration so that the Independent Expert may reach a decision from his or her own knowledge and expertise; and(c) unless otherwise agreed between the parties, must be concluded within 20 Business Days from the acceptance by the Independent Expert of his or her appointment. 16.6 Independent ExpertThe Independent Expert must:(a) be appointed under an agreement with the parties containing terms reasonably required by the Independent Expert, including:(i) a release of any liability which the Independent Expert may otherwise incur for any act or omission, other than actual fraud, during the course of the appraisal; and(ii) a term that the parties will pay the Independent Expert's costs;(b) before acceptance of appointment, warrant to the parties that he or she has no interest in the outcome of the appraisal or any other conflict of interest; (c) give an adequate opportunity to the parties to make submissions in relation to the dispute or other matter including submissions in reply; and(d) not communicate with one party to the appraisal without the knowledge of the other.16.7 Determination The determination of the Independent Expert:(a) must be in writing;(b) will be final and binding on the parties; and(c) must be given effect to by the parties in accordance with its terms.16.8 Costs of appraisalIf the Independent Expert does not make a determination as to the payment of the costs of a determination:(a) the parties must equally bear the costs of the Independent Expert (including the Independent Expert's costs of engaging and consulting advisers, if any); and(b) each party must bear its own costs and disbursements relating to the determination.16.9 Condition precedent It is a condition precedent to a party’s entitlement to bring any court proceeding (other than for urgent interlocutory relief) in respect of a dispute that the parties have first complied with the procedures set out in this clause 16.16.10 Suspension of performance The parties must, unless otherwise agreed, suspend to perform their obligations under this Agreement despite the existence of a dispute to which this clause 16 applies.16.11 Part to survive terminationThis clause 16 will survive the completion of the Works.17 Termination by the Client17.1 Notice of breachIf Sittis commits a breach of this Agreement, the Client may give written notice to Sittis:(a) specifying the breach; and(b) requiring its rectification within 20 Business Days.17.2 Termination for breachIf Sittis fails to rectify the breach within the period specified in the notice issued under clause 17.1, the Client may, without prejudice to any other right of the Client:(a) immediately terminate this Agreement; or(b) take out of Sittis’ hands the whole or part of the Works remaining to be completed and suspend payment until the relevant breach has been remedied to reasonable satisfaction of the Client.17.3 Termination for insolvencyWithout affecting any other right which the Client may have, to the extent permitted by law, the Client may terminate this Agreement, by notice in writing to Sittis, if an Insolvency Event occurs in respect of Sittis.17.4 Payment on TerminationIf this Agreement is terminated under clause 17.2(a), then, without prejudice to any other right of the Client at law or under this Agreement, Sittis may serve on the Client the final Progress Claim under clause 7, regarding the date of termination of Agreement as the Date of Completion.18 Termination by Sittis18.1 Notice of breachIf the Client commits a breach of this Agreement, Sittis may give written notice to the Client:(a) specifying the breach; and(b) requiring its rectification within 20 Business Days.18.2 Termination for breachIf the Client fails to rectify the breach within the period specified in the notice issued under clause 18.1, Sittis may, without prejudice to any other right of Sittis, immediately terminate this Agreement.18.3 Termination for insolvencyWithout affecting any other right which Sittis may have, to the extent permitted by law, Sittis may terminate this Agreement, by notice in writing to the Client, if an Insolvency Event occurs in respect of the Client.18.4 Payments by the Client on Termination(a) Sittis may render the Client an Invoice for the Works performed and goods supplied as at the date of termination, including any items which are ordered on behalf of the Client and are not normally stocked by Sittis which cannot be returned to the relevant supplier; and(b) the Client must pay Sittis all outstanding Invoices, relevant to Contract Sum, immediately upon the date of termination.18.5 Indemnity for breachWithout affecting any other indemnity or rights under this Agreement, if the Client is in breach of any of its obligations under this Agreement, the Client must indemnify Sittis against all Claims, loss or damage suffered by Sittis as a consequence of that breach.18.6 Termination for convenienceNotwithstanding anything to the contrary in this Agreement, Sittis may, at any time, terminate this Agreement for convenience (with or without any reason) upon giving the period of notice specified in Item 14 of the Contract Particulars in writing to the Client. 19 Notices19.1 Method of noticeUnless this Agreement provides to the contrary, a communication in connection with this Agreement must be in writing and may (in addition to any other lawful or effective means of service) be given or served:(a) by being left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the addressee’s address specified in Items 12 and 13 of the Contract Particulars or if the addressee notifies another address, to that address; or(b) by email to the addressee’s email address specified in Items 12 and 13 of the Contract Particulars or if the addressee notifies another email address, to that email address.19.2 EffectA communication takes effect from the later of the time it is received and the time specified in it.19.3 ReceiptA letter or email is taken to be received:(a) if a letter, on the 2nd Business Day after posting; and(b) if by email, on the day the email was sent, unless an automatic reply email is received by the sender indicating that the email recipient has not received the email.20 General20.1 Entire agreementThis Agreement constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, either oral or written, made or entered into between the parties prior to the date of this Agreement with respect to the subject matter of this Agreement.20.2 Governing laws This Agreement will be governed by, and construed in accordance with, the laws for the time being in force in the Jurisdiction and the parties submit to the jurisdiction of the courts of the Jurisdiction.20.3 Civil Liability LegislationTo the extent permitted by law the operation of Civil Liability Legislation is excluded under the Agreement. The rights, obligations and liabilities of the parties are as set out in this Agreement.20.4 ChargeThe Client charges the Site and the Works (including any tangible goods from the Works) with the payment to Sittis of all monies payable to Sittis under this Agreement, or otherwise from the carrying out of the Works. 20.5 GSTThe parties acknowledge that any Consideration specified in this Agreement is exclusive of GST and that a party (‘recipient’) providing that Consideration to the other party (unless otherwise stated) (‘supplier’) for any Taxable Supply made by the supplier under this Agreement, must:(a) at the same time as the Consideration is provided for that supply;(b) but subject to the provision by the supplier to the recipient of a Tax Invoice for that supply;pay to the supplier, an additional amount equal to the GST payable in respect of that supply, provided that, where the recipient is required to reimburse or pay to the supplier, an amount calculated by reference to a cost, expense or other amount paid or incurred by the supplier, the amount of reimbursement or payment will be reduced by the amount of any input tax credits to which the supplier is entitled for the acquisition relating to that cost, expense or other amount.20.6 Personal Property Securities Act 2009 (Cth)This Agreement will be taken to be a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) to the extent that Sittis wishes to take out a security interest to secure any payment, or the performance of any obligation, under or in connection with this Agreement.20.7 Waiver (a) Any delay or failure to enforce any provision of these Terms will not be deemed to be a waiver.(b) There is no implied waiver by either party in respect of any provision of these Terms and any waiver granted by either party is without prejudice to any other rights.(c) Any waiver must be in writing and does not cover subsequent breaches of the same or a different kind.(d) A waiver by a party of its rights under these terms is only effective in relation to the particular obligation or breach in respect of which it is given.20.8 No RelianceEach party warrants that in entering into this Agreement he, she or it has not relied on any statement, representation, promise, warranty, conduct or inducement made or given or offered by the other party or any person or agent on behalf of that other party, other than those expressly contained in this Agreement, but has instead determined to enter into this Agreement of his, her or its own free will and volition upon his, her or its own assessment, after having obtained independent advice from his, her or its own advisers.20.9 RelationshipSittis is and always will be an independent contractor to the Client for the purposes of the Works to be performed by Sittis. Nothing in these Terms is intended to be or is implied to create a relationship of agency, employment, partnership or joint venture.20.10 Force MajeureIf the performance or observance of any of the Sittis’ obligations are prevented, restricted or affected by reason of a Force Majeure event, Sittis may, in its absolute discretion give prompt notice of that cause to the Client, which, on delivery of that notice Sittis are excused from such performance or observance to the extent of the relevant prevention, restriction of affection.20.11 Electronic Transactions Act 2001 (ACT)Each Party gives its consent to executing this Agreement and any relevant documents in an electronic form, for so long as when signed by an individual, must have an adult witness to witness the signature of that person.