Terms and Conditions of Purchase
Terms and Conditions
'Arkit Representative' means Arkit's representative stated in Item 3 or any replacement notified in accordance with Clause 14;
‘Arkit’s Policies and Procedures’ includes all policies, plans, manuals, guidelines, instructions and other requirements of Arkit as published on Arkit’s website or otherwise provided to the Consultant from time to time which are, or may become applicable to the Site or the Works.
'Associate' means an officer, employee, agent, contractor, subcontractor, licencee, consultant, subconsultant, invitee, client or adviser of Arkit or the Contractor (as the case may be) but does not include Arkit or the Contractor;
'Australian Privacy Principles' has the meaning given in the Privacy Act 1988 (Cth);
'Authorised Nominating Authority' means the authorised nominating authorities stated in Item 23;
'Business Days' has the meaning given to it in the SOP Act;
'Claim' includes any action, claim, demand or proceeding, including for the payment of money or any other relief or remedy, and whether arising in contract, tort (including negligence), restitution, under statute or otherwise at law or in equity.
'Competent Contractor' means a qualified, competent, professional contractor experienced in performing works of a similar nature and complexity to the Works;
'Confidential Information' means all information and materials, in any form concerning Arkit, the Works, the Contract or which Arkit indicates to be confidential, but does not include information in the public domain (other than due to a breach of confidentiality by any person);
'Contract' means the agreement between the parties constituted by the Contract Documents;
'Contract Documents' means the documents stated in Item 7;
'Contract Sum' means the amount to be paid by Arkit to the Contractor as specified in Item 10 but excluding any additions or deductions which may be required to be made by the Contract;
'Contractor's Representative' means the Contractor's representative stated in Item 6;
'Covering Page' means the page to which these General Conditions are attached.
'Date for Practical Completion' means the date or the expiry of the period for Practical Completion (calculated from the Execution Date) set out in Item 9;
'Date of Practical Completion' means the date on which Practical Completion was reached as determined by Arkit (acting reasonably);
'Defects Liability Period' means the period set out in Item 11;
'Discrepancy' includes any error, omission, ambiguity, inconsistency or discrepancy.
'Execution Date' means the date on which the Contract was signed by the last of the parties;
'General Conditions' means this document and any Schedules thereto, as amended by the Special Conditions (if any);
'Information Only Documents' means the documents provided by Arkit as part of the quotation, tender or negotiation process (if any) for the Contract (excluding the Contract Documents);
'Goods' means any items of plant or material which the Contractor is obliged to supply, or supply and install, pursuant to the Contract Documents;
'IPPs' means the 'Information Privacy Principles' set out in Schedule 1 to the PDP Act together with any 'applicable code of practice' as defined in that Act.
‘Item’ means an item in the Covering Page.
'Key Personnel' means those persons set out in Item 15 (if any) or replaced in accordance with Clause 14.6(c);
'Legal Requirements' means:
(a) all laws (including statutes, regulations, the common law, codes and standards) relevant to the Works; and
(b) the requirements of all authorities and persons having jurisdiction over or in respect of any part of the Site or the Works;
'Loss' includes any cost, loss, liability, action, damage or expense, howsoever arising;
'Notice of Delay' means a written notice of a possible delay which includes details of the possible delay and the cause;
'OH&S Laws' means all relevant Legal Requirements concerning the health, safety and welfare of people;
'Payment Claim' means a claim for payment by the Contractor which includes a tax invoice and sets out:
details of that part of the Works carried out to which the claim relates.
details of any Variations included in the claim.
the amount claimed by the Contractor and the basis for calculation of that amount; and
any information required by the SOP Act.
'Payment Schedule' means a statement of Arkit's opinion of the moneys due from Arkit to the Contractor or from the Contractor to Arkit (as the case may be) including the reasons for any difference;
'PDP Act' means the Privacy and Data Protection Act 2014 (Vic);
'Personal Information' has the meaning given in the Privacy Act 1988 (Cth);
'PPS Act' means the Personal Property Securities Act 2009 (Cth);
'Privacy Laws' means any Legal Requirement which relates to the privacy of information about individuals and with which the Contractor must comply, including the Privacy Act 1988 (Cth), the Australian Privacy Principles and any applicable code of practice.
'Practical Completion' means that stage in the carrying out of the Works when
- the Works are complete in accordance with the Contract except for minor omissions and minor defects;
- those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion have been carried out and passed; and
- documents and other information required under the Contract or which, in the opinion of Arkit, are required for the use, operation and maintenance of the Works have been supplied;
'Schedule' means a schedule to these General Conditions.
'Schedule of Rates' means the schedule of rates and prices (if any) attached to or identified in Schedule 4;
'Security' means two unconditional undertakings in the form, and from a financial institution, both approved by Arkit for the amount or amounts set out in Item 13 (or where the Security is additional Security for Goods, means Security in accordance with Clause 20.6(e));
'Site' means the site or sites described in Item 12;
'Site Conditions' means any physical conditions on, above or below the surface of the Site including man-made things;
'Site Working Hours' means the days and hours for carrying out the Works set out in Item 17;
'SOP Act' means the Building and Construction Security of Payment Act 2002 (Vic);
‘Special Conditions’ means the special conditions set out or identified in Schedule 1;
‘State’ means the State or Territory of Australia in which the Site is situated;
'Variation' means a variation to the Works including an increase, addition, decrease, omission or change to the scope of the Works.
'Variation Direction' has the meaning given in Clause 19.1; and
'Works' means the work described or referred to in Item 8 to be carried out and completed in accordance with the Contract Documents, including Variations directed by Arkit in accordance with the Contract.
The Contract comprises the entire understanding between the parties and no regard will be had to any prior dealings. Any terms that may have been attached or embodied in the Contractor's tender (if any) or other correspondence are deemed to have been withdrawn in favour of the terms stated in the Contract.
The Contract comes into effect and operates from the Execution Date.
The obligations, warranties and representations of the Contractor under the Contract apply to any part of the Works carried out by the Contractor prior to the Execution Date.
In the interpretation of the Contract, no rule of construction applies to the disadvantage of Arkit on the basis that Arkit prepared or put forward the Contract or any part of it.
If it is not possible to read down a provision as required by Clause 1.7, the part or all of the provision that is unlawful or unenforceable will be severed from this Contract and the remaining provisions continue in force.
Without limiting any other way in which documents or notices may be given by a party to the other party under this Contract, a notice or document may be given by electronic delivery to the email address stated in Item 2 and Item 5 or to a substitute email address advised by one party to other from time to time as an address at which notices may be given.
All obligations to indemnify under the Contract survive termination or expiration and completion of the Contract.
Nothing contained or implied in this Contract is intended to create a partnership between the parties, or except as otherwise provided in this Contract, establish any party as an agent, employee or representative of the other party.
The Contractor shall not represent or hold itself out to any third party that it acts as agent, employee or partner of Arkit or has power or authority to directly or indirectly bind Arkit.
A party does not waive a right simply because it failed to exercise the right, delays exercising the right or only exercises part of the right.
A waiver of one breach of a term of this Contract does not operate as a waiver of another breach of the same term or any other term.
No addition to or modification of any provisions of this Contract shall be binding upon the parties unless in writing and signed by the parties.
Unless otherwise expressly stated, Arkit or the Arkit Representative may exercise a right or power under or arising out of this Contract in its absolute discretion.
Contractor's primary obligations and acknowledgments
carry out and complete its obligations under the Contract:
(i) in accordance with the Contract Documents.
(ii) in a proper and workmanlike manner.
(iii) with the professional skill, care and diligence that would be expected of a Competent Contractor;
(iv) using suitably qualified and experienced persons and subcontractors; and
(v) so as to achieve Practical Completion by the Date for Practical Completion;
comply with all directions given by Arkit.
comply with all Legal Requirements and Arkit’s Policies and Procedures.
ensure that upon Practical Completion the Works comply with all Legal Requirements.
obtain all approvals required under any Legal Requirement for the performance of the Works or otherwise required by the Contract Documents to be obtained by the Contractor.
bring to the meetings referred to in Clause 2.1(f) the persons and materials required by Arkit;
not be a party to any act or thing prejudicial to the goodwill, reputation or overall public image of Arkit; and
take out, keep current and produce to Arkit on request, evidence of any relevant authorization, permit or licence (including permission to use software) required by a Legal Requirement to do the Works.
do all things necessary and necessarily incidental to the carrying out of its obligations under the Contract.
The Contractor acknowledges and agrees that:
it has, and by entering into the Contract is deemed to have:
(i) fully informed itself of the scope and requirements of the Works;
(ii) thoroughly examined and carefully checked the Contract Documents and satisfied itself that they are suitable, appropriate and adequate for the performance of the Works; and
(iii) satisfied itself that the Contract Sum and Date for Practical Completion makes due allowance for the performance by the Contractor of its obligations arising out of or in connection with the Contract; and
(b) its obligations and liabilities remain unaffected despite any review, comment on or acceptance of the Works by Arkit.
The Contractor must install any Goods in accordance with the requirements of the Contract and must ensure that those Goods are:
new, unless expressly stated otherwise in the Contract.
suitable, appropriate, adequate and fit for the purpose for which the Works are required, as stated in or reasonably able to be inferred from the Contract Documents; and
of merchantable quality and free from defects.
Principal's primary obligation
Subject to the Contract, Arkit must pay the Contractor the Contract Sum, as adjusted by any additions or deductions made under the Contract.
Schedule of Rates
The parties acknowledge and agree that the Schedule of Rates (if any) will only be used for the purposes of valuing Variations and, at the sole discretion of Arkit, assessing Payment Claims. The Contractor is not entitled to make any Claim against Arkit arising out of or in connection with a Schedule of Rates.
Arkit may have recourse to the Security to satisfy any:
debt or other moneys (including liquidated damages) due from the Contractor to Arkit; or
other Loss which Arkit has suffered or incurred, or asserts that it may suffer or incur, arising in connection with the Contract,
and whether or not either the liability or the amount is disputed.
Subject to Clause 5.2, Arkit will release 50% of the Security then held by Arkit within 10 Business Days of the Date of Practical Completion and release the balance at the end of the Defects Liability Period or upon rectification of any defects notified during the Defects Liability Period, whichever is the later to occur. If the Contractor has provided additional Security for any Goods under Clause 20.6(e), Arkit will release that additional Security in accordance with Clause 20.9.
The Contractor will not take any steps to injunct or otherwise restrain any financial institution from paying Arkit under the Security or Arkit from exercising its rights in respect of the Security.
Information Only Documents
The Contractor:
acknowledges and agrees that the Information Only Documents do not form part of the Contract; and
is not entitled to make any Claim against Arkit arising out of or in connection with any Discrepancy in or between any one or more of the Information Only Documents or any failure by Arkit to provide any other information.
If either party identifies any Discrepancy in or between any one or more of the Contract Documents, then that party must notify the other party. On becoming aware of a Discrepancy, Arkit will direct the Contractor as to how the Discrepancy is to be resolved. In so directing, Arkit:
may apply the following order of precedence:
(i) the higher or greater requirement, level, standard or quality shall prevail.
(iii) to the extent neither paragraphs (i) nor (ii) resolve the discrepancy, the documents shall be constructed according to the order of precedence of the Contract Documents listed in Item 7.
shall, if it considers that the Discrepancy cannot be resolved according to the rules of interpretation set out in Clause 7.1(a), give the Contractor a direction expressly stated to be a direction under this Clause 7.1(b) resolving the Discrepancy.
If the Principal gives a direction expressly stated to be a direction under Clause 7.1(b) and:
the Discrepancy the subject of the direction could not have been identified by a Competent Contractor prior to the Execution Date; and
compliance with the direction causes the Contractor to incur more or less cost,
the difference shall be valued under Clause 19.4 and added to or deducted from the Contract Sum. The Contractor is not otherwise entitled to make any Claim against Arkit arising out of or in connection with any directions under this Clause 7 or the resolution of any Discrepancy.
Confidentiality and privacy
Except as required by law, the Contractor must, and must procure that its Associates, keep confidential and not disclose to any third party the Confidential Information without the prior written consent of Arkit.
Upon the earlier of the expiration of the Defects Liability Period or termination of the Contract under Clause 25, the Contractor must deliver to Arkit all materials in its possession comprising the Confidential Information.
is bound by, and must procure its Associates are bound by, the IPPs with respect to any act done or practice engaged in by it or its Associates for the purposes of the Contract in the same way and to the same extent as Arkit would have been bound by the IPPs in respect of that act or practice had it been directly done or engaged in by Arkit.
must not, and must procure its Associates do not, cause Arkit to be in breach of its obligations under the PDP Act; and
must comply with all procedures for the enforcement of the IPPs set out in the PDP Act (including complying with any compliance or other notices given by, or requirements of, the Commissioner for Privacy and Data Protection appointed under the PDP Act and producing documents).
The Contractor must:
(i) comply, and procure that its Associates comply, with the Privacy Laws; and
(ii) immediately notify Arkit if it becomes aware of a breach of Clause 8.3(a)(i) or of any investigation by the Office of the Australian Information Commissioner; and
If Arkit gives notice to the Contractor that it proposes to audit, either directly or through its auditors, the Contractor's information handling practices, provide all reasonable assistance to the person conducting that audit.
Subcontractors and dealings with Contract
must not assign or transfer the Contract or any payment or any other right, under the Contract without the prior written approval by Arkit.
may only subcontract a part of the Works with the prior written approval of Arkit (which approval may be conditional); and
remains fully responsible for, and will not be relieved from, any liability for the Works notwithstanding that the Contractor has subcontracted the carrying out of any part of the Works.
To the full extent permitted by law the Contractor:
without limiting the general nature of Clauses 9.1 and 9.2(a), must indemnify and keep indemnified Arkit on demand from and against any Loss suffered or incurred by Arkit arising out of or in connection with the operation of Part IVAA of the Wrongs Act 1958 (Vic) including any Loss arising out of an apportionment in accordance with Part IVAA of the Wrongs Act 1958 (Vic) of any Claim by Arkit against the Contractor.
Occupational health and safety
comply with and procure that its Associates comply with all OH&S Laws.
implement and maintain a system of obtaining and updating information on all OH&S Laws.
in carrying out the Works, eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practicable to eliminate risks to health and safety, then reduce those risks as far as is reasonably practicable; and
where the Contractor has notified Arkit of matter described in Clause 10.1(d), if required by Arkit to do, the Contractor must within 2 Business Days of such request provide a written report to Arkit detailing the health or safety matter or incident, including results of the investigations into its cause and any recommendations or strategies to prevent a recurrence.
If stated in Item 14 that the Contractor is to be appointed 'principal contractor', then:
Arkit appoints the Contractor to be, and the Contractor accepts its appointment as, 'principal contractor' for all of the Works carried out at the Site.
the Contractor will perform and satisfy all of the functions, duties and obligations of 'principal contractor' under the OH&S Laws; and
the Contractor is authorized by Arkit to manage and control the Site to the extent necessary to ensure that the Contractor complies with the OH&S Laws and performs and satisfies all of the functions, duties and obligations of 'principal contractor' under the OH&S Laws.
If requested by Arkit to do so, the Contractor must within 5 Business Days of such request provide Arkit with documentation demonstrating compliance with the requirements set out in this Clause 10.
Care of the Works, people and property
The Contractor must protect people and property in the performance of the Works and prevent nuisance and unreasonable noise.
Damage to persons, property and the Works
The Contractor must indemnify and keep indemnified Arkit on demand from and against all Claims against, or Loss or suffered or incurred by, Arkit arising out of or in connection with:
the loss of or damage to any property (whether property of Arkit or any other person); and
the death or personal injury of any person,
arising out of or in connection with the carrying out of the Works.
The Contractor must, at its own expense, promptly make good any loss or damage to the Works:
during the period described in Clause 11.1; and
caused by the Contractor or its Associates.
The Contractor must, as directed by Arkit, promptly make good any loss or damage to the Works:
during the period described in Clause 11.1; and
(b) caused partially by the Contractor or its Associates.
To the extent the loss or damage was not caused by the Contractor or its Associates, the Contractor will be entitled to have its reasonable costs incurred in making good that loss or damage valued under Clause 19.4 and added to the Contract Sum.
a public liability insurance policy which covers:
(i) Arkit, the Contractor and its subcontractors employed in the Works for their respective rights and interests and their liability to third parties; and
(ii) the Contractor's liability to Arkit and Principal's liability to the Contractor for loss of or damage to property and the death of or injury to any person.
contract works insurance to cover liability against loss or damage to the Works while in the Contractor's care under Clause 11.1 and in respect of the rectification of defects during the Defects Liability Period for the value of the Works; and
workers compensation insurance to cover liability arising out of death of or injury to persons employed by the Contractor, including liability at statute and at common law.
The insurance policies under Clauses 13.1(a) and 13.1(b) must name Arkit as an insured and include a cross liability condition.
The Contractor must ensure that each of its subcontractors are similarly insured.
Each policy must be taken out with a licensed insurer and be in terms approved by Arkit (acting reasonably). Before commencing the Works, on each subsequent anniversary of the Contract and whenever requested by Arkit, the Contractor must produce evidence to the satisfaction and approval of Arkit that it has satisfied all of its insurance obligations under the Contract. Insurance does not limit the Contractor’s liability under the Contract or otherwise.
Representatives and key personnel
Arkit has appointed the Arkit Representative.
The Arkit Representative may give directions and carry out all of Arkit's powers or functions under the Contract as agent of Arkit.
The Contractor must not deal with or comply with the directions of any person other than the Arkit Representative.
employ the Key Personnel to perform those roles and duties specified in Item 15 (if any).
subject to Clause 14.6(c), not replace the Key Personnel without Arkit's prior written approval; and
The Site and Site Conditions
Subject to the Contractor having complied with Clauses 5 and 13, Arkit will, within a reasonable period after the Execution Date, provide the Contractor with non-exclusive access to the Site or a sufficient part of the Site to enable the Contractor to commence the Works.
The Contractor will not be entitled to make any Claim arising out of or in connection with encountering, or being delayed by, any Site Condition.
If the Contractor, for the purpose of carrying out the Works, requires access to any property adjoining or in the vicinity of the Site, the Contractor will obtain, at its cost, all necessary consents and approvals from the owner of such property or any other relevant person or authority prior to accessing such property.
The Contractor must give Arkit a Notice of Delay within 5 Business Days after the date on which it became aware, or a Competent Contractor would have become aware (whichever is the earlier) of anything that may delay the carrying out of the Works.
is or will be delayed in carrying out the Works by a:
(i) breach of the Contract by Arkit.
(ii) Variation the subject of a Variation Direction; or
(iii) an act or omission of Arkit or an employee, consultant or agent of Arkit, other than acts or omissions that are authorised by, and done or omitted to be done (as the case may be) in accordance with the Contract; and
has:
(i) provided a Notice of Delay to Arkit in accordance with Clause 16.1; and
(ii) satisfied Arkit that the Contractor has or will be actually delayed in a manner that will delay the Contractor in achieving Practical Completion,
then Arkit will extend the Date for Practical Completion by a period equivalent to the extent of the delay, as determined by Arkit (acting reasonably).
In assessing the period of delay under Clause 16.2, Arkit may take into account the extent to which the Contractor has failed to take the reasonable steps that would have been taken by a Competent Contractor to mitigate the consequences of the delay.
Arkit may, for any reason and in its absolute discretion, at any time extend the Date for Practical Completion.
The Contractor will not be entitled to make, and releases Arkit from, any Claim against Arkit arising out of or in connection with any delay or prolongation other than as expressly provided for in this Clause 16.
If the Contractor fails to reach Practical Completion by the Date for Practical Completion, the Contractor will be immediately indebted to Arkit for liquidated damages at the rate stated in Item 18 for every day after the Date for Practical Completion to and including the Date of Practical Completion or the date that the Contract is terminated, whichever first occurs.
The Contractor agrees that the rate of liquidated damages constitutes a genuine pre-estimate of the loss Arkit will suffer if the Contractor fails to achieve Practical Completion by the Date for Practical Completion.
If this Clause 17 (or any part) is found for any reason to be void, voidable, unenforceable or otherwise inoperative, then Arkit will be entitled to recover damages from the Contractor under general law for any failure of the Contractor to achieve Practical Completion by the Date for Practical Completion.
Defects Liability Period
The Defects Liability Period commences on the Date of Practical Completion.
During the Defects Liability Period, Arkit may give the Contractor a direction to rectify a defect. If rectification is not commenced or completed by the date stated in such direction, Arkit may have the rectification carried out by others. All costs and expenses incurred by Arkit in having those rectification works carried out will be a debt immediately due and payable by the Contractor to Arkit.
The Contractor must carry out rectification of defects at times and in a manner causing as little inconvenience to the occupants or users of the Works as is reasonably possible.
Variations
Arkit may at any time before the Date of Practical Completion direct the Contractor to carry out a Variation by written notice headed 'Variation Direction'. The Contractor must not carry out a Variation other than pursuant to a Variation Direction. Variations the subject of a Variation Direction will be valued in accordance with Clause 19.4.
No Variation, including an omission of any part of the Works, will invalidate or constitute a repudiation of the Contract. Arkit may perform or procure another person to perform any part of the Works deleted or omitted by a Variation Direction.
Where the Contract provides that a valuation is to be made under this Clause 19.4, the Contract Sum will be increased or decreased (as the case may be) by the amount determined by Arkit using the following order of precedence:
prior agreement.
rates or prices in the Schedule of Rates (if any) to the extent Arkit considers that it is reasonable to use them; and
reasonable rates or prices, plus an amount for profit and overheads calculated by using the percentage thereon stated in Item 19.
For the purposes of a valuation under Clause 19.4, if requested by Arkit to do so, the Contractor must within 5 Business Days of such request, provide Arkit with documentation evidencing the costs or expenses incurred by the Contractor in performing the Variation.
Payment
Arkit may, within 10 Business Days after receiving a Payment Claim, issue to the Contractor a Payment Schedule.
Subject to Clause 20.5, Arkit must pay the Contractor or the Contractor must pay Arkit (as the case may be) the amount set out in the Payment Schedule (or if Arkit does not issue a Payment Schedule within time, the amount set out in the Payment Claim) within the time stated in Item 21. Neither the issue of a Payment Schedule nor a payment by Arkit will be evidence that the Works have been carried out in accordance with the Contract or an admission of liability and payment is on account only.
The Contractor must ensure that its employees and subcontractors have been paid all amounts due and payable to them as at the time a Payment Claim is submitted. Arkit may at any time and from time to time by written notice require the Contractor to provide, within 5 Business Days of receipt of Arkit's notice, a signed statutory declaration evidencing such payments and compliance by the Contractor with its obligations under this Clause 20.4. Failure by the Contractor to comply with this Clause 20.4, or providing a statutory declaration which contains a statement that is untrue, will constitute a breach of the Contract by the Contractor.
The Contractor will not be entitled to include in a Payment Claim payment for any Goods intended for incorporation in the Works but not incorporated, and Arkit will not be obliged to make payment for such Goods, unless the relevant Goods are listed in Item 22 and the Contractor establishes to the satisfaction of Arkit that:
the Goods have reasonably but not prematurely been delivered to the Site;
ownership of the Goods will pass to Arkit upon the making of the payment claimed;
the Goods are properly stored, labelled the property of Arkit and adequately protected;
the Contractor has obtained and is maintaining fire and theft insurance over the relevant Goods in a form and for an amount satisfactory to Arkit;
where the Goods are to be imported into Australia, the Contractor has:
(i) given Arkit a clean on board bill of lading or its equivalent, drawn or endorsed to the order of Arkit and, where appropriate, a custom's invoice for the Goods; and
(ii) obtained and is maintaining a transit insurance policy for the shipment or carriage of the relevant Goods in a form and for an amount satisfactory to Arkit.
Should the Contractor include in a Payment Claim an amount in breach of Clause 20.6, then the relevant Payment Claim will be deemed not to include, and Arkit will not be obliged to assess, that amount.
Upon payment to the Contractor of the amount claimed, the Goods the subject of the claim will be, and the Contractor will procure that they are, the unencumbered property of Arkit free of any lien or charge.
If the Contractor has provided additional Security for Goods under Clause 20.6(e), Arkit will release that additional Security within 10 Business Days of the incorporation into the Works of the Goods.
In this Clause 21 words that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in that Act.
Except as otherwise provided by this Clause 21, all consideration payable under the Contract in relation to any supply is exclusive of GST.
If GST is payable in respect of any supply made by a supplier under the Contract, subject to Clause 21.5, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under the Contract.
the amount of the payment, reimbursement or contribution less any input tax credits in respect of the payment, reimbursement or contribution to which the other party is entitled; and
if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.
If an adjustment event occurs in relation to a taxable supply under this Contract:
the supplier must provide an adjustment note to the recipient within 7 days of becoming aware of the adjustment; and
any payment necessary to take effect to the adjustment must be made within 7 days after the date of receipt of the adjustment note.
The Contractor warrants to Arkit that it is registered for GST. The Contractor shall notify Arkit if it ceases to be registered for GST.
The Contractor must indemnify and keep indemnified Arkit on demand from and against all Loss suffered or incurred by Arkit arising out of or in connection with a suspension by a subcontractor under the SOP Act for works which form part of the Works.
PPS Act
must do everything Arkit considers reasonably necessary to ensure that any 'security interest' as defined in s 12 of the PPS Act arising under the Contract in favour of Arkit is able to be registered, is enforceable, perfected or otherwise effective and has the highest priority possible under the PPS Act;
agrees that ss 95, 120, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPS Act will not apply to the enforcement of any such security interest;
agrees to not register a financing change statement without the prior written consent of Arkit and agrees not to disclose information of the kind referred to in s 275(1) of the PPS Act; and
waives any rights it may have had but for this Clause 23.1 under ss 157(1) and 275(7)(c) of the PPS Act.
Suspension
Arkit may suspend the carrying out of the Works or part of the Works by issuing a written notice to the Contractor. The Contractor must immediately comply with such notice and suspend the progress of the whole or part of the Works for the period of time stated in the notice, or if no time is stated, for the period of time directed by Arkit.
The Contractor must recommence the Works in accordance with any further written notice issued by Arkit to the Contractor.
If the suspension is due to an act, default or omission by the Contractor or its Associates, the Contractor is not entitled to make and releases Arkit from any Claim arising out of or in connection with the suspension. If and to the extent the suspension is for any other reason, Arkit will pay to the Contractor its reasonable direct costs necessarily and reasonably incurred by the Contractor as a result of the suspension, as assessed by Arkit under Clause 19.4.
If Arkit becomes aware that a subcontractor is entitled to suspend work forming part of the Works under the Security of Payment Act, Arkit:
may pay the subcontractor the amount owing to it in respect of that work (in which event the amount so paid shall be a debt immediately due and payable by the Contractor to Arkit); and
shall notify the Contractor prior to making the payment referred to in Clause 24.4(b).
In the event that the Contractor:
fails to remedy a default within 5 Business Days from the date of being notified of the default by Arkit.
is insolvent, has an administrator, receiver, receiver and manager, provisional liquidator, liquidator or controller appointed to it, enters into a scheme of arrangement with its creditors, is wound up or is bankrupt; or
abandons the Works,
Arkit may terminate the Contract by giving written notice to the Contractor.
Upon termination under Clause 25.1:
subject to Clause 20.5, Arkit will only be liable to the Contractor for those amounts which were due and payable under the Contract as at the date of termination; and
The Contractor will be liable to Arkit for any Loss that Arkit has incurred or is likely to incur arising out of or in connection with the termination as a debt due and payable from the Contractor to Arkit.
The Contract may be terminated:
at any time by the mutual written agreement of the parties; or
Within 20 Business Days after the end of the month in which the Contract is terminated under Clause 25.3(b) Arkit will pay the Contractor an amount being so much of the Contract Sum as is due to the Contractor for the Works carried out by it under the Contract up to the date of termination, less any amounts that Arkit is entitled to deduct, withhold or set off arising out of the Contract or otherwise.
An amount payable to the Contractor under Clause 25.4 constitutes the Contractor's sole and exclusive entitlement to compensation in the event of termination under Clause 25.3(b) and other than that amount the Contractor will not be entitled to make and forever releases and discharges Arkit from any Claim in respect of such termination.
If a dispute or difference between the parties arises in connection with the Contract, then either party may deliver by hand or send by registered post to the other party, a written notice of dispute identifying and providing details of the dispute.
Within 10 Business Days of receipt of a notice of dispute, the parties will together confer at least once to attempt to resolve the dispute.
effected by a mediator agreed by the parties and failing agreement, a mediator nominated by the President of the Law Institute of Victoria; and
conducted in accordance with the Resolution Institute Mediation Rules 2016.
If the dispute has not been resolved within 40 Business Days after the dispute has been referred to mediation under Clause 26.3, either party may be notice in writing delivered by hand or sent by registered post to the other party, refer that dispute to litigation.
Nothing in this Clause 26 will prejudice the right of a party to seek urgent injunctive or declaratory relief of any matter arising out of this Contract.
Notices
A notice or other communication required or permitted to be delivered to a party must be in writing and subject to Clause 26 may be delivered:
personally, on the party;
by leaving it at the party's address for service (including at its registered office, if the party is a company);
by posting it by prepaid post addressed to that party at the party's address for service;
by facsimile to the party's facsimile number for service; or
by electronic mail to the party's email address for service.
The particulars of Arkit and the Consultant for service as at the Execution Date are set out in Item 2 and Item 5. Either party may change its address, facsimile number or email address by giving notice to the other party.
A notice or other communication is deemed delivered:
if delivered personally or left at the person's address, upon delivery.
if posted within Australia to an Australian address, 6 Business Days after posting and in any other case, 10 Business Days after posting;
if served by facsimile, subject to Clause 27.3(e), at the time indicated on the transmission report produced by the sender's facsimile machine indicating that the facsimile was sent in its entirety to the addressee's facsimile;
if served by email, subject to Clause 27.3(e), at the time the email containing the notice left the sender's email system, unless the sender receives notification that the email containing the notice was not received by the recipient; and