AGREEMENT No... FOR THE SUPPLY, FABRICATION AND DELIVERY OF... BETWEEN

Transcription

1 AGREEMENT No.... FOR THE SUPPLY, FABRICATION AND DELIVERY OF... BETWEEN LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED ABN AND... ABN... PROJECT: BARANGAROO PROJECT No Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 1

2 SUPPLY AGREEMENT FOR... AGREEMENT NO.... THIS AGREEMENT is made on the... day of between the following parties: 1. LEND LEASE PROJECT MANAGEMENT & CONSTRUCTION (AUSTRALIA) PTY LIMITED ABN of 30 The Bond, 30 Hickson Road, Millers Point NSW 2000 ("Lend Lease"); and ABN... of... ("the Supplier"). THE PARTIES AGREE: A. The Supplier must supply... ( Goods ) to Lend Lease in accordance with the Contract. B. Lend Lease must pay the Contract Sum to the Supplier in accordance with the Contract. C. The Contract means the entire, final and concluded agreement between Lend Lease and the Supplier relating to the fabrication and supply of the Goods which agreement supersedes all previous communications whether oral or written and is evidenced by the following documents (the "Contract Documents"): (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) The Contract Terms annexed hereto. The Appendix. Annexure A: Advance Payments. Annexure B: The format of the Deed of Novation. Annexure C: The format of the Warranty. Schedule 1: The Goods. Schedule 2: The Design Requirements. Schedule 3: The Quality Requirements. Schedule 4: The Programming Requirements. Schedule 5: Schedule of Information Management. Schedule 6: Sustainability Requirements. The drawings listed in the Appendix. (xiii) The Proforma Payment Claim Statements for clauses and 4.10 (xiv) Subcontractor Statement [NSW Only] and Notes. (xv) The Specification numbered... and dated... (xvi) [The Request for Tender and Supplier s Tender] Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 2

3 TABLE OF CONTENTS CLAUSE NO. CLAUSE HEADING 1. Interpretation 2. Fabrication and Delivery 2.1 The Supplier to Fabricate and Supply Goods 2.2 Programme Requirements 2.3 Supply of Shop Detail Drawings & Other Materials 2.4 Inspection 2.5 Testing 2.6 Storage 2.7 Package and Transportation 2.8 Delivery 2.9 Liquidated Damages 2.10 Personnel 2.11 Personnel on Site 2.12 Risk for Errors, Omissions, Ambiguities or Discrepancies 3. Warranties, Liabilities, Indemnities & Insurance 3.1 Warranties and Liabilities 3.2 Indemnities 3.3 Insurance 4. Progress Payments 5. Variations 6. Cancellation, Suspension and Termination 6.1 Cancellation 6.2 Suspension 6.3 Termination for Default 7. General Provisions 7.1 Assignment and Subcontractors 7.2 Notices 7.3 No General Lien 7.4 Secrecy 7.5 Publicity 7.6 Compliance with Statutory and Other Regulations 7.7 Taxes 7.8 Arbitration of Disputes 7.9 Counting of Days 7.10 Approval by Lend Lease 7.11 Governing Law 7.12 Industrial Matters Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 3

4 8. Notification of Claims 9. Operation and Maintenance Information 10. Supply of Spares 9.1 Operation and Maintenance Manuals 9.2 Work As-Executed Drawings 9.3 Information Management 11. Quality Requirements 12. Lend Lease s Liability 13. Software Functionality Warranty 14. Goods and Services Tax 15. Software Source Codes 16. Lend Lease s Right to Novate 17. Sustainability Requirements Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 4

5 CONTRACT TERMS 1. INTERPRETATION 1.1 In the Contract unless the context otherwise requires: BDA means the Barangaroo Delivery Authority (ABN ) Client means the other party or parties with Lend Lease to the Head Contract, named in the Appendix. Delivery Date (or Delivery Dates ) means the date or dates by which the Supplier must deliver the Goods or the relevant part or parts of the Goods to Lend Lease as set out in the Appendix and any amendments to a Delivery Date made pursuant to the provisions of this Contract. Delivery Point means the place or places at which the Supplier must deliver the Goods to Lend Lease, being the specific place nominated in the Appendix or as nominated by Lend Lease from time to time. The parties acknowledge that the Delivery Point will be the Site or in the vicinity of the Site. Goods means the items specified in Schedule 1 to be fabricated (where applicable) and supplied in accordance with the Contract. Unless the context otherwise requires, reference in this Contract to Goods shall include part or parts of the Goods. GST has the same meaning as in A New Tax System (Goods and Services Tax) Act, Head Contract means the agreement, arrangement or understanding with the Client under which Lend Lease will execute certain work and for which the Goods are required. Site means the place specified in the Appendix. Specification means the specification attached or incorporated by reference hereto or if amended during the performance of the Contract, the specification as amended. 1.2 In the event of any conflict between the Supplier s Tender, if included as a Contract Document, and any of the other Contract Documents the conflicting provision of the Supplier s Tender will be disregarded. 1.3 Lend Lease may for its own purposes incorporate this Contract into a purchase order in which event the terms and conditions of such purchase order will have no effect unless the parties expressly agree to set aside this provision For the purposes of this Contract the word fabricate will include one or more of the processes of manufacture, modification, filling, printing logos and other processes necessary to satisfy the requirements of Schedule 1, the Specification and Drawings If the Contract requires the Supplier to undertake any design associated with the Goods then the word fabricate will be deemed to include design and the provisions of Schedule 2 will apply. 1.5 The Supplier may with Lend Lease s consent subcontract the process of fabrication of the Goods. 1.6 This Contract operates retrospectively from the date of commencement of the work to which this Contract relates. 2. FABRICATION AND DELIVERY 2.1 The Supplier to Fabricate and Supply Goods Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 5

6 The Supplier must fabricate, supply and deliver the Goods to the Delivery Point in accordance with the requirements of this Contract. The Supplier must not deliver the Goods prior to the Delivery Date, except with the prior approval in writing of Lend Lease. Time will be of the essence of this Contract. 2.2 Programme Requirements The Supplier must comply with Schedule 4 with respect to Programming Requirements. 2.3 Supply of Shop Detail Drawings and Other Materials The Supplier must submit to Lend Lease for approval at the times specified in Schedule 4 or such other times as are reasonably required by Lend Lease, the shop drawings, and other materials identified in the Appendix The Supplier will be responsible for and will bear the cost of any alteration to the work to be performed on the Goods arising from a discrepancy or error in, or omission from any drawings, or other material issued by the Supplier whether the same has been reviewed by Lend Lease or not Unless otherwise agreed, the minimum period required by Lend Lease for the review and approval of shop drawings will be as follows: (i) (ii) 3 weeks from the date of submission; or 1 week from the date of re-submission where drawings are amended. 2.4 Inspection Lend Lease or its authorised representative may inspect and examine the Goods and witness tests on the materials, workmanship and performances of the Goods and the process of fabrication at any time during or subsequent to fabrication at the Supplier's premises, at the premises of its sub-contractors (if any), or at the Delivery Point. For the purposes of this sub-clause, the Supplier must ensure that Lend Lease or its authorised representative is given a right of access to any premises on which work in respect of the Contract is being carried out Lend Lease will be entitled to reject at any time Goods which do not comply with the requirements of this Contract and may, in its absolute discretion, direct the Supplier to either repair or replace promptly and within any reasonable time specified by Lend Lease any rejected Goods wholly at the Supplier's expense. 2.5 Testing The Supplier must give not less than three (3) day's prior written notice to Lend Lease of the place, date and time of any tests to be carried out on the Goods. Lend Lease or its nominated representative will be entitled to attend any such tests and the Supplier must provide any test results requested by Lend Lease The Supplier must carry out all additional tests reasonably requested by Lend Lease. If the Goods fail any test so requested, the cost of such test will be borne by the Supplier. If the Goods pass the test or tests so requested by Lend Lease the cost of all such tests will be borne by Lend Lease Where the Goods or any part of the Goods fail to meet test requirements or in the reasonable opinion of Lend Lease are defective the relevant tests on the Goods as repaired or replaced must be repeated within a reasonable time if so requested by Lend Lease. All costs associated with such retesting will be borne by the Supplier. Any costs associated with such retesting incurred by Lend Lease may be deducted from the moneys due otherwise to the Supplier under the Contract. 2.6 Storage Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 6

7 2.6.1 Upon completion of fabrication, all Goods which have been made ready for delivery must be stored by the Supplier and must be: (i) (ii) (iii) (iv) available for immediate delivery; free from any form of lien, mortgage or guarantee in favour of any third party; properly stored and protected against damage or deterioration; when payment has been made pursuant to Clause 4 clearly marked as the property of Lend Lease, and set aside in a secure area separate from other Goods and materials not relating to this Contract If Lend Lease extends any Delivery Date pursuant to Clause 2.8.2(v) or Clause and the Goods are required to be stored beyond the earlier Delivery Date the Supplier must store the Goods fabricated and ready to be delivered at no cost to Lend Lease for up to the period of months, specified in the Appendix, however if Lend Lease requires that the Goods fabricated and ready for delivery be stored by the Supplier for a longer period, the Supplier will be entitled to claim the additional amount specified in the Appendix per week in respect of such storage until the Goods are delivered. 2.7 Packing and Transportation The Supplier must load the Goods at its own cost for transportation in accordance with the requirements of the Specification, or if not so specified, to suitably acceptable standards A detailed list identifying the Goods must be handed to Lend Lease or its representative by the Supplier at the time of delivery All items comprising the Goods must be clearly tagged or marked for identification in the manner as instructed by Lend Lease Each item must be marked legibly with Lend Lease's name, the name of the Project and any relevant description and item number specified in the Contract The risk of loss, damage or depreciation in the Goods will rest with the Supplier until the Goods have been delivered by the Supplier to the Delivery Point and have been unloaded whereupon risk of loss, damage or depreciation will pass to Lend Lease or their representative provided that the risk of unloading will be that of the Supplier. 2.8 Delivery The Supplier must notify Lend Lease in writing two (2) days prior to the dispatch of the Goods of the name of its carrier and the estimated time of arrival at the Delivery Point (i) If the Supplier is delayed or anticipates being delayed in the performance of the Contract for any reason whatsoever, it must promptly notify Lend Lease in writing of such delay or such anticipated delay and must include in such notice the manner in which it intends to avoid or minimise such delay or anticipated delay. (ii) If the delay is caused by an event beyond the reasonable control of the Supplier and, of the type referred to in the Appendix, occurring on or prior to the Delivery Date, and the delay might reasonably be expected to result in a delay to the delivery of the Goods, the Supplier must, if it desires to claim an extension of the Delivery Date, give to Lend Lease, not later than the number of days stated in the Appendix after the cause of the delay arose, notice in writing of its claim for an extension of the Delivery Date, together with a statement of facts on which it bases its claim Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 7

8 The Supplier must also include in that notice the details of the duration and effects of any continuing delay previously notified to Lend Lease. (iii) (iv) (v) (vi) (vii) (viii) If Lend Lease determines that the cause of the delay is such as to justify an extension to the Delivery Date(s), Lend Lease must grant the Supplier such extension to the Delivery Date(s) as Lend Lease considers reasonable and must as soon as practicable after it has granted the extension, notify the Supplier thereof. It will be a condition of becoming entitled to an extension of time that the Supplier must constantly use its best endeavours to avoid delay in the progress of the work under the Contract and do all that may reasonably be required by Lend Lease to expedite the execution of the Contract so as to complete the same within the time required by this Contract. If the Supplier is delayed in circumstances where the progress of the works under the Head Contract is delayed then the Supplier will not be entitled to an extension of time in excess of the period of the extension of time granted to Lend Lease under the Head Contract. This subclause (v) will not apply if the delay is caused by an act of prevention or breach of contract by Lend Lease or if the cause of the delay is a type for which Lend Lease is not entitled to an extension of time under the Head Contract. Lend Lease may at any time by notice in writing to the Supplier extend the Delivery Dates or any of them for any reason. If a variation ordered pursuant to Clause 5 involves or may involve a reduction in time for the execution of the supply and fabrication of the Goods, Lend Lease and the Supplier must attempt to agree upon the reduction or reductions of time to apply and failing such agreement Lend Lease must determine an appropriate reduction or reductions in time and in either case, must notify the Supplier in writing of the adjusted Delivery Date or Delivery Dates. Under no circumstances will the Supplier be entitled to claim from Lend Lease any costs, losses or expenses incurred or damages suffered owing to any such delay or to the extension of any or all of the Delivery Dates If the Supplier fails to make deliveries within the date or dates specified Lend Lease will be entitled to do one or more of the following: (i) (ii) determine this Contract by written notice to the Supplier; direct the Supplier not to supply some or all of the Goods which have not been delivered within the specified times in which case the Contract Sum will be reduced by a reasonable amount in respect of those goods; and (iii) claim liquidated damages in accordance with Clause The Supplier must deliver the Goods to the Delivery Point in accordance with the details set out in the notice from Lend Lease given pursuant to Clause Lend Lease must notify the Supplier in writing at least one (1) day prior to requiring delivery of any Goods of: (i) (ii) (iii) the date and time for delivery; details of the Goods required; the Delivery Point. Where the date for the delivery of the Goods stated in the notice is later than the Delivery Date in respect of those Goods, the notice must be deemed to be a notice given pursuant to Clause 2.8.2(vi) hereof and the Delivery Date shall be deemed to be extended to the date for delivery contained in the notice Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 8

9 2.8.6 If Lend Lease requires Goods to be delivered on a Sunday, the Supplier will be entitled to a reasonable amount in respect of any additional delivery costs incurred by the Supplier If the Supplier has fabricated and stored Goods before the Delivery Date, Lend Lease may require early delivery of those Goods at no additional cost to Lend Lease. 2.9 Liquidated Damages If the Supplier fails to deliver the Goods in the condition required by the Contract, by the Delivery Date or Dates specified in the Appendix, as adjusted, the Supplier must pay to Lend Lease by way of pre-estimated and liquidated damages and not as a penalty the amount stated in the Appendix for each day that elapses between the relevant Delivery Date and the date of delivery of the Goods Personnel The Supplier must ensure that its personnel are competent and experienced in the type of work they are undertaking. At least 10 days prior to its personnel commencing any work under this Contract the Supplier must make available to Lend Lease satisfactory evidence of the qualifications and job history of those personnel Personnel on Site Where any personnel of the Supplier are required to enter upon the Site, those personnel must comply with Lend Lease s safety requirements and must adhere to any relevant legislation to the extent to which it applies on the Site Risk for Errors, Omissions, Ambiguities or Discrepancies If either party becomes aware of an error, omission, ambiguity or discrepancy in the Contract it must immediately give written notice to the other party of the error, omission, ambiguity or discrepancy. Lend Lease must issue written instructions to the Supplier explaining, determining or correcting any such errors, omissions, ambiguities or discrepancies. The Supplier agrees and acknowledges that any instruction issued by Lend Lease under this Clause 2.12 in respect of any ambiguity or discrepancy is not a variation and that Lend Lease will not be liable for any losses incurred by the Supplier arising from any instruction issued by Lend Lease under this Clause 2.12 in respect of any ambiguity or discrepancy. 3. WARRANTIES, LIABILITIES INDEMNITIES AND INSURANCES 3.1 Warranties and Liabilities The Supplier warrants to Lend Lease that the Goods will be new and of the specified quality and will be fit, sufficient and suitable for their purpose, merchantable, of good material and workmanship and free from defect and shall be in accordance with the requirements of the Contract and consistent with any representation, express or implied upon which Lend Lease may be entitled to rely All warranties and conditions implied by law or by Statute in contracts for the sale of Goods will apply to the Contract (i) Without limiting Lend Lease's rights at law or under any statute, any Goods rejected by Lend Lease or found defective owing to the Goods not being in accordance with the Contract within the period stated in the Appendix ("the Defects Liability Period") must either be repaired or replaced, at the absolute discretion of Lend Lease, by the Supplier, within the reasonable time specified by Lend Lease, at the Supplier's sole expense. (ii) Any remedial work carried out during the Defects Liability Period must not unreasonably disrupt, or inconvenience the activities of the occupants of the Project. Subject to any restrictions on the access to the Project and associated facilities that Lend Lease may Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 9

10 determine to be necessary for the execution of remedial work by the Supplier, the use of the Project and associated facilities by its occupants will not relieve the Supplier from any liability or obligation under this Contract The Supplier warrants to Lend Lease that: (i) (ii) (iii) all payments for royalties, patent rights and governmental fees due or payable for the Goods are included in the Contract Sum and will be paid by the Supplier; the Goods will not infringe any Australian or foreign patent, copyright, registered design or other protected right; the Supplier will defend at its own cost and indemnify Lend Lease, the Client and the BDA in respect of costs, losses and expenses, including any damages arising from any claim, action or suit made against Lend Lease, the Client and/or the BDA for patent or copyright infringement. The Supplier must obtain all permits, licences and give all notices necessary to comply with the requirements of any legislation or statutory authority in respect of the Goods and the work under the Contract and must pay and bear all fees, deposits and taxes payable in connection therewith The Supplier warrants that the Goods will be, at the time property passes to Lend Lease, free and clear of all liens, charges and encumbrances The Supplier must: (i) (ii) (iii) ensure that any warranties provided or to be provided by manufacturers or suppliers of the Goods are provided to Lend Lease naming Lend Lease and the Client jointly as beneficiaries; and ensure that the benefit of each warranty required to be provided under the Contract is capable of assignment at Lend Lease s option to Lend Lease, the Client, their assigns or any of them; and assign the benefit of each warranty to Lend Lease, their assigns or any of them as Lend Lease may direct Notwithstanding any other provision of this Contract the Supplier will not be entitled to any payment until it has duly executed (in duplicate) and delivered to Lend Lease the warranty in the form contained at Annexure C The Supplier will attain from its suppliers warranties in the form contained at Annexure C. 3.2 Indemnities The Supplier must indemnify Lend Lease against claims in relation to injury (including death) to persons or damage to property arising out of or in connection with the use of the Goods or any part of the Goods owing to defects in such Goods provided that such defects are caused by the negligence of the Supplier or by its failure to comply with the requirements of the Contract In addition to any other liability, the Supplier indemnifies Lend Lease against any liquidated or unliquidated damages for which Lend Lease may be liable under the Head Contract (whether for late completion or otherwise) to the extent that Lend Lease s liability for those damages arises out of or is connected with a breach by the Supplier of the Contract. The rate of liquidated damages under the Head Contract is stated in the Appendix. 3.3 Insurance The Supplier at its own cost must effect and maintain the following policies of insurance: Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 10

11 (i) (ii) (iii) (iv) Workers Compensation Insurance and any additional insurance as required by the laws and the awards applicable to the relevant State; A policy of insurance in respect of the Goods including Goods in storage or in transit in Australia until they have been unloaded at the Delivery Point. The insurance policy must cover loss, destruction or damage to the Goods, for their full reinstatement and replacement value, while they are in storage, during loading, in transit, during unloading and during fabrication if fabricated in Australia by the Supplier. Public Liability insurance in the joint names of the Supplier, the Client and Lend Lease to cover their respective liabilities to third parties in relation to the work to be carried out under this Contract, including without limitation, the liabilities set out in clause The Public Liability insurance must be for an amount of not less than $10,000, Air/Marine Transit Insurance (if the Goods are imported) to provide cover at all times in respect of loss, destruction or damage to the Goods for their full reinstatement and replacement value during transit from their place of manufacture or supply until they have cleared customs in Australia The Supplier must provide evidence acceptable to Lend Lease that the insurances referred to above have been effected. If the Supplier fails to insure or maintain the insurance in force, Lend Lease may itself effect the insurances and deduct the amount of the premiums paid in respect thereof from any moneys that may be or become payable under the Contract. 4. PROGRESS PAYMENTS 4.1 Lend Lease must pay to the Supplier the Contract Sum stated in the Appendix progressively during the execution of the work under this Contract in the manner set out below Each month, up to the month following the month in which the delivery of the last of the Goods, required to be delivered under this Contract, has been effected, on the day stated in the Appendix, the Supplier may submit to Lend Lease a payment claim in a form satisfactory to Lend Lease, showing: (c) the value of the Goods fabricated and ready to be delivered but not yet delivered at the date of the payment claim; and the cumulative value of Goods which have been delivered to Lend Lease to the date of the payment claim; and the amount previously paid to the Supplier in respect of the Goods The Supplier must submit with each payment claim: a written statement in the form attached; and; if the Site is located in New South Wales, a duly completed statement, in the form attached hereto and titled SUBCONTRACTOR STATEMENT [NSW ONLY] Within the number of days stated in the Appendix after the receipt by Lend Lease of a payment claim Lend Lease must determine the contract value of the Goods which have been delivered to Lend Lease and must certify to the Supplier that amount less: the amount of previous payments in respect of the Goods; 5% of that amount by way of retention (unless an undertaking has been provided in accordance with clause 4.5); and Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 11

12 (c) (d) any amount that Lend Lease may be entitled to deduct or withhold from the moneys otherwise due in accordance with this Contract or any other contract with Lend Lease; plus the GST payable by the Supplier Lend Lease will issue to the Supplier a recipient created tax invoice for the amount certified under clause The Supplier will not issue a tax invoice At the time stated in the Appendix Lend Lease must pay to the Supplier the amount certified under clause Any payment by Lend Lease to the Supplier for Goods fabricated and ready to be delivered, but not delivered, will be subject to the provisions of Annexure A hereto. 4.5 Within 14 days after the execution of this Contract or such longer period of time as may be approved in writing by Lend Lease, in lieu of the retention of 5% of payments referred to in Clause 4.3 above, the Supplier may provide to Lend Lease two irrevocable and unconditional undertakings in a form and provided by a party acceptable to Lend Lease each equal to two and one half percent (2.5%) of the Contract Sum as security for the performance of the Suppliers obligations. One undertaking or half the retention referred to in clause 4.3 may be held by Lend Lease until the delivery of all Goods required to be delivered under this Contract has been effected and the other undertaking or remainder of the retention may be held by Lend Lease until the expiry of the defects liability period under the Head Contract. 4.6 Payments made pursuant to Clause 4.3 will not be taken as evidence against or as an admission by Lend Lease of the value of the Goods or that they have been fabricated in accordance with the Contract, but will be taken to be payment on account only. 4.7 Where payment for any Goods is made by Lend Lease, title to and property in the Goods will pass to Lend Lease and the Supplier must mark the same appropriately. Risk therein will remain with the Supplier until the Goods are delivered to the Delivery Point and unloaded provided that the risk of unloading will be that of the Supplier. 4.8 The Contract Sum will be reduced by the aggregate of any amounts deducted under this Contract or drawn down from the undertaking referred to in clause Lend Lease will not be obliged to make any payment to the Supplier under this Contract until the Supplier has provided to Lend Lease an ASIC Company Extract, dated on or about the date of its submission to Lend Lease, obtained from the Espreon (formerly Legalco) Online Information System or another such service provider In the month following the month in which the delivery of the last of the Goods, required to be delivered under this Contract has been effected, the Supplier must provide its final payment claim together with the statements, in the forms attached, in respect of clause and this clause VARIATIONS 5.1 Lend Lease may, for any reason including for the purpose of having all or part of the Goods supplied by others, vary or amend the quantities, the Goods specified in the Specification or the method of fabrication of the Goods or make any other variation whatsoever in relation thereto by notice in writing to the Supplier. The Supplier must comply with the requirements of such notice. The varied work or goods will be subject to the terms of the Contract. No variation shall vitiate this Contract. 5.2 If a variation pursuant to Clause 5.1 results in a reduction in the quantity, the Specification or the method of fabrication of the Goods, the Supplier will not, except as provided in Clause 6.1, be entitled to any payment, including any payment for overhead and profit, in respect of such reduction Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 12

13 5.3 Lend Lease will not be liable to pay the Supplier for a variation, which increases the supply, unless it is instructed by Lend Lease by notice in writing prior to commencement of the work comprising the variation. 5.4 The parties must endeavour to agree on the value of a variation, which increases the supply, prior to the commencement of the work comprising the variation but if there be any failure to agree to the valuation of a variation prior to the commencement of the work comprising the variation, the Supplier must proceed to carry out the variation without delay in the execution of the work under the Contract. 5.5 If Lend Lease and the Supplier fail to agree the value of a variation, Lend Lease must pay a reasonable amount in respect of the variation. 6. CANCELLATION, SUSPENSION AND TERMINATION 6.1 Cancellation Lend Lease may at any time prior to delivery of the Goods omit from the Contract all or part of the Goods to be fabricated, supplied and delivered under the Contract but not yet delivered Where such omission does not result from default by the Supplier Lend Lease: (i) (ii) must give written notice to the Supplier whereupon the Supplier must cease all work in relation to the Goods as applicable and must immediately do everything possible to mitigate any costs incurred by it consequent upon such cancellation; will be liable, where the Goods are not yet completed for delivery, only for:- costs actually incurred by the Supplier up to the date of cancellation and a reasonable amount in respect of winding down expenses incurred by the Supplier as a direct result of the omission; (iii) will be liable where the Goods are completed and ready for delivery in accordance with the Contract but for which payment has not yet been made, for the cost thereof. 6.2 Suspension At any time prior to delivery of the Goods Lend Lease may direct the Supplier to suspend all or part of the work in respect of the Goods to be supplied under the Contract or to suspend for a further period work already suspended under this clause in which event the Supplier may, provided the suspension does not result from default by the Supplier, submit a claim for those storage costs necessarily incurred by the Supplier and which have been approved in writing by Lend Lease, acting reasonably, prior to those costs being incurred by the Supplier. 6.3 Termination for Default If the Supplier at any time commits any substantial breach of this Contract or defaults in any one or more of the following respects: (i) (ii) if without reasonable cause it wholly suspends the supply, fabrication or delivery of the Goods; or if it fails to proceed with the supply, fabrication and delivery of the Goods with reasonable diligence or in a competent manner; or (iii) if it refuses or persistently neglects to comply with written notices from Lend Lease; or Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 13

14 (iv) if a receiver and/or manager is appointed to carry on the Supplier's business for the benefit of its creditors or any of them, or if an order is made or a resolution passed for the winding up of the Supplier, other than a voluntary winding up by members for the purposes of reconstruction or amalgamation, or if the Supplier is placed under official management or enters into a compromise or other arrangement with its creditors or if a liquidator or provisional liquidator is appointed to the Supplier's business or if Lend Lease on reasonable grounds suspects that the Supplier is insolvent; then Lend Lease may send to the Supplier a written notice specifying the breach or default and if the Supplier continues in breach or default for three (3) days after the receipt of such a notice, or if Lend Lease has previously issued a notice under this Clause and the Supplier commits a further breach or default, Lend Lease may: (c) terminate the Contract or omit from the Contract any of the Goods not yet supplied and delivered; and take possession of all Goods or part thereof for which Lend Lease has paid or which have been completed and are ready for delivery (subject to Lend Lease making payment for such Goods); and procure elsewhere merchandise similar to the Goods and the Supplier shall be liable for any costs incurred by Lend Lease in excess of the Contract Sum in satisfying the requirements of this Contract; provided however that the Supplier must continue the performance of this Contract to the extent to which any Goods are not omitted by Lend Lease If Lend Lease terminates the Contract it will not be obliged to make any payment to the Supplier until the Project is completed The Supplier will be liable for and indemnifies Lend Lease against any losses, costs, damages and expenses Lend Lease may suffer arising out of or connected with the termination Any right or remedy created by, or arising upon, a breach of or a default under this Contract, or upon an event of default, is not waived by any failure to exercise or delay in the exercise, or a partial exercise of that right or remedy The Supplier may only make one payment claim after the termination of the Contract, which payment claim must be submitted to Lend Lease within 20 days of the date of termination of the Contract. 6.4 Termination of Head Contract If the Head Contract is terminated by any party (or Lend Lease s employment under the Head Contract is determined) for any reason whatsoever, Lend Lease may by written notice to the Supplier either: (i) (ii) (iii) terminate the Contract; novate the Contract, on its existing terms, to the Client or the Client s nominee. The Supplier hereby appoints Lend Lease to act as its attorney to execute all documents and take all other steps necessary to give effect to any such novation; or novate the Contract on the terms in the Pro Forma Deed of Novation at Annexure B or on terms reasonably required by Lend Lease to the BDA, the BDA s nominee, the Client or the Client s nominee. The Supplier hereby appoints Lend Lease to act as its attorney to execute all documents and take all other steps necessary to give effect to any such novation Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 14

15 6.4.2 If the Contract is terminated in accordance with clause Lend Lease's liability in respect of any Claim by the Supplier arising out of or in connection with such termination, will be limited solely to the unpaid value of the cumulative value of Goods which have been delivered to Lend Lease by the Supplier prior to termination. 7. GENERAL PROVISIONS 7.1 Assignment and Subcontractors This Contract or any part thereof may not be assigned by the Supplier except with the prior written approval of Lend Lease, which approval may be withheld in its absolute discretion The Supplier must not without the prior approval in writing of Lend Lease subcontract the whole or any part of the work to be performed in relation to the Goods Any subcontracting by the Supplier in respect of the Contract will not relieve it from the full and entire responsibility for the performance of the obligations of the Supplier under this Contract. 7.2 Notices Any notice or other document required to be served upon the Supplier or Lend Lease under this Contract may be either sent by certified mail or served personally at the registered office of the Supplier or Lend Lease as the case may be or such other address as is notified by the parties in writing. Any notice or document sent by certified mail will be deemed to have been served three (3) days after posting The Supplier must notify Lend Lease in writing at least two (2) days prior to the dispatch of Goods of the name of its carrier and the estimated time of arrival of the Goods at the Delivery Point. 7.3 No General Lien To the extent permitted by Statute, the Supplier shall have no general lien in the Goods or any part of the Goods. 7.4 Secrecy All plans, drawings and specifications prepared by or on behalf of Lend Lease must be kept secret and confidential by the Supplier and will remain the property of Lend Lease and must not be used by the Supplier other than for performing the work and complying with the terms of this Contract and must be returned to Lend Lease on completion of the Contract or upon request at any time by Lend Lease. 7.5 Publicity The Supplier must not make any arrangement for or undertake any publicity in relation to the Goods or to the Project for which the Goods are being fabricated and supplied without the prior written approval of Lend Lease. 7.6 Compliance with Statutory and Other Regulations The Supplier must comply with the requirements of all relevant statutory enactments and acts of parliament and of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such enactment or Act and with any lawful requirements thereunder and with the lawful requirements of governmental, public, municipal and other authorities in any way affecting or applicable to the work or the Project. Before making any departure from the terms of the Contract which may be necessary to comply with any such requirements the Supplier must give Lend Lease prior written notice specifying the proposed departure and the reason therefore. The Supplier must not proceed with such departure until it has received from Lend Lease consent to such course which may include instructions on the work to be performed in relation to such departure Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 15

16 7.7 Taxes The Supplier must pay all taxes which are or may become payable in respect of the Goods to be fabricated and supplied under this Contract. The Supplier must indemnify Lend Lease against all costs incurred or damages suffered owing to the failure of the Supplier to pay the taxes assessed in relation to the Goods. 7.8 Arbitration of Disputes (c) (d) (e) (f) (g) (h) If any dispute or difference arises out of or in connection with this Contract whether raised before or after the execution of the work under the Contract, then either of the parties may give the other a notice identifying the particulars of the dispute. After the expiration of ten (10) days from the issue of the notice the party issuing the notice may notify the other party that it requires the dispute to be referred to arbitration and the dispute, upon the issue of that notice, thereupon without further notice being required will be referred to arbitration. The arbitrator will be appointed by the President of the Australasian Dispute Centre. The arbitrator will be bound by the rules of evidence where the amount involved in the dispute exceeds $50, The parties are entitled to be represented by a duly qualified legal practitioner or other representative if the amount involved in the dispute exceeds $50, The arbitrator will not have the power to order the parties to a dispute to take any steps to achieve settlement including attendance at a conference conducted by the arbitrator unless the amount involved in the dispute is less than $50, Notwithstanding any referral to arbitration under the provisions of, the Supplier must proceed without delay with the execution of the work under the Contract. The Supplier must accept as final and binding upon it any award obtained in accordance with the arbitration provisions of the Head Contract so far as the same may concern the quality and/or workmanship of the Goods. Without prejudice to the final and binding nature of the award Lend Lease, as soon as practicable after becoming aware of the issue of a notice of dispute or difference under the arbitration provisions of the Head Contract as relating to the Goods, must inform the Supplier of the issue of the notice and the contents thereof. 7.9 Counting of Days Where under any provision of this Contract any notice is to be given or any other act matter or thing is to be done (including without limitation any payment or release of security or allowance of time made for delay in performance of the Contract) in a stated period of days the following days will not be counted, namely, Sundays, Statutory or Public Holidays and any officially recognised building industry non-work day The days comprising any period of days computed in accordance with the preceding paragraph will be deemed consecutive if interrupted only by days which are not to be taken into account under the preceding paragraph Approval by Lend Lease Unless otherwise stated expressly in the Contract, each reference in the Contract to Lend Lease reviewing, examining, approving or checking means, methods, techniques, designs, drawings, plans, diagrams, measurements, sequences, tests and procedures or other matters employed or to be employed by the Supplier in the execution of the Contract will mean only that those matters will be reviewed by Lend Lease for the purpose of administering the Contract and the Supplier s responsibility for those matters will not thereby be diminished Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 16

17 7.11 Governing Law The laws of the State or Territory in which the Site is located will govern the Contract and any dispute resolution procedures Industrial Matters To the extent required by law or any applicable written government codes of practice, the Supplier must comply and must ensure that its personnel, consultants, subcontractors and suppliers comply with The National Code of Practice and the Implementation Guidelines for the Construction Industry and all relevant State codes of practice to the extent applicable, legislation, awards and enterprise agreements. The Contract Sum includes for all amounts which may be payable as a result of these matters. 8. NOTIFICATION OF CLAIMS 8.1 Lend Lease will not be liable upon any claim by the Supplier in respect of any matter arising out of the Contract unless: the claim, together with full particulars thereof, is lodged in writing with Lend Lease within the periods specified in the Contract, and if no period is specified then not later than 15 days after the date of the occurrence of the events or circumstances on which the claim is based; or written notice of intention to make the claim specifying the nature of the claim is lodged with Lend Lease within the time referred to above and the claim, together with full particulars thereof, is lodged in writing with Lend Lease not later than 10 days after the work under this Contract is complete. 8.2 The Supplier agrees that Lend Lease may not by conduct, representations (oral or written or implied) or otherwise howsoever waive its rights under Clause 8.1 or otherwise in favour of the Supplier. 9. OPERATION AND MAINTENANCE INFORMATION 9.1 Operation and Maintenance Manuals Where the Contract calls for the provision of operation and maintenance manuals, within the time specified in the Appendix the Supplier must provide Lend Lease with the number as stated in the Appendix complete originals of the operation and maintenance manuals in a form and including such details as acceptable to Lend Lease. 9.2 Work As-Executed Drawings Where the Contract calls for the provision of work as-executed drawings, during the execution of the work under this Contract the Supplier must progressively complete and submit to Lend Lease for approval as-executed drawings in respect of the work under this Contract. Prior to completion of the work under this Contract the Supplier must lodge with Lend Lease final copies of the approved executed drawings of the work under this Contract in the form and in the quantities specified in the Appendix. 9.3 Information Management The Supplier must comply with all requirements of Schedule 5 (Schedule of Information Management) unless otherwise agreed in writing with Lend Lease. 10. SUPPLY OF SPARES Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 17

18 10.1 Where the Contract calls for the supply of spare materials, on or before the date 4 weeks prior to completion of the work under this Contract or such other date instructed by Lend Lease in writing, the Supplier must supply Lend Lease with the spare materials nominated in the Appendix (the Spare Materials ) The Supplier must adequately pack the Spare Materials for long term storage and deliver, unload and store as directed by Lend Lease The Supplier must clearly and permanently mark on the exterior of the packaging of the Spare Materials the following details: (c) the contents; the Supplier's name; the Client's name. 11. QUALITY REQUIREMENTS The Supplier must comply with the provisions of Schedule 3 with respect to quality requirements. 12. LEND LEASE S LIABILITY Lend Lease will not be liable in contract, negligence or otherwise for losses, costs, damages or expenses suffered by the Supplier which in any way whatsoever arise out of or are connected with the suspension of the performance of the Contract, a direction or requirement in relation to programming, a delay, disruption or interference to the progress or completion of the Contract or a change to a Delivery Date which arises out of or is in any way connected with any of the following: 12.1 the acts or omissions of others (including but not limited to other suppliers, subcontractors or consultants but not the Client), whether engaged by Lend Lease or otherwise; or 12.2 a matter beyond the direct control of Lend Lease. 13. SOFTWARE FUNCTIONALITY WARRANTY 13.1 The Supplier must ensure that all software, hardware and firmware including computer programmes, and any other material, facility or device (the "Programs") contained within the Goods which are in any way affected by dates: have been specifically designed, programmed and comprehensively tested to provide full functionality and operate without adverse effect with respect to all dates: and if required by this Contract, have been specifically designed, programmed and comprehensively tested to operate in conjunction with hardware, software and firmware or any other products or components, not contained within the Goods but which have been specified by Lend Lease ("Other Components"), such that both the Programs and Other Components will when operating in conjunction with each other provide full functionality and operate without adverse effect with respect to all dates; and (c) (d) will in all circumstances provide full functionality and operate without adverse effect with respect to all dates; and will without limitation deal properly with: (i) the year, decade and century date transitions; Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 18

19 (ii) (iii) (iv) leap years; all calculations based on dates, including calculations such as subtractions, additions, percentages, sequences and comparisons; and functions that are programmed to commence or end on a particular date The Supplier must ensure that all modifications, including revision, additions, omissions and upgrades to the Programs must comply with the requirements of this Clause The Supplier must ensure that all contracts it enters into with its consultants, subcontractors and suppliers for the provision of any services or goods associated with the Goods must contain a specification whose provisions comprehensively reflect the requirements of this Clause GOODS AND SERVICES TAX All amounts and consideration in respect of a supply made under or in connection with the Contract are exclusive of GST to the extent it is not otherwise expressly included If GST is imposed on or in respect of any supply made under or in connection with the Contract, then the consideration payable for that supply is increased by an amount determined by multiplying the consideration otherwise payable by the rate at which GST is imposed. Amounts payable under this clause will be payable at the same time the other consideration for the supply is payable If there is an adjustment to the consideration payable for a supply, then Lend Lease must issue an Adjustment Note to the Supplier and, in addition to the amendment to the GST exclusive consideration payable for the relevant supply, either: Lend Lease must pay an additional amount to the Supplier calculated as the increase in the consideration payable for the relevant supply multiplied by the prevailing GST rate; or the Supplier must refund an amount to Lend Lease calculated as the decrease in the consideration payable for the relevant supply multiplied by the prevailing GST rate. Lend Lease may deduct from or set off against any amount otherwise owing to the Subcontractor any amount which is required to be refunded by the Supplier under clause Each party: warrants to the other that at the time of each supply occurring or deemed to occur it will have an Australian Business Number and will be registered for GST purposes; and indemnifies the other against any losses resulting from it not having an Australian Business Number or being registered for GST purposes Any policy of insurance to be effected or maintained under the Contract must cover any liability for GST which may arise upon settlement of a claim pursuant to that policy Recipient Created Tax Invoices The parties agree that: Lend Lease can issue tax invoices in respect of all supplies under or in connection with the Contract; Subject to the terms of this Contract, the Supplier will not issue tax invoices in respect of supplies under or in connection with the Contract; Supply Only Agreement RCTI by Lend Lease (rebranded) Rev. AC ( ) Page 19