DEFINITIONS:
Words and phrases used in this document have the following meanings:
Company the entity named as such in the Purchase Order, and Company Personnel any agent, contractor (but not the Vendor), director, employee or officer of it.
Completion Date the date or each date in the Purchase Order.
Contract these terms and the Purchase Order.
Defects Liability Period or Warranty the period of 12 months from the Delivery Date or Completion Date as applicable.
Delivery Date the date or dates in the Purchase Order.
Delivery Point or Services Location the address and location specified as such in the Purchase Order.
Goods equipment, material, plant or other goods specified under Description of Goods in the Purchase Order.
GST a tax for supply of goods and services imposed by the Commonwealth of Australia.
Invoice Period (a) in relation to Goods, on completion of the Purchase Order; (b) in relation to Services where the Service Period is one month or less, on completion of the Purchase Order; or (c) in relation to Services where the Service Period Is more
than one month, at the end of each month.
Payment Period the period detailed in the Purchase Order.
Price the price detailed in the Purchase Order.
Purchase Order the document identified as such on the reverse of these terms.
Purchase Order Number the number detailed in the Purchase Order.
Relevant State the state of the Delivery Point or Service Location as applicable.
Service Period the period between the date of the Purchase Order and the applicable Completion Date.
Services the services specified under the Specification of Services in the Purchase Order.
Vendor the individual or entity named as such in the Purchase Order, and Vendor Personnel any individual or entity involved directly or indirectly in the supply of the Goods or provision of Services.
2. SCOPE
2.1 The Vendor must supply the Goods and provide the Services and all things necessary for the supply the Goods or provision of the Services, to the Company in accordance with the Contract.
2.2 The Goods must be (and it is a condition that the Goods are): (a) consistent with any description and details of the Goods in the Purchase Order; (b) consistent with any sample provided to and approved by the Company; (c) fit for any purpose set out in
the Purchase Order and otherwise be fit for the purpose for which the Goods are commonly supplied and used; (d) of merchantable quality, new and unused; (e) free from any defect; (f) capable of use by the Company and any third party if on-sold without
infringing any right of any third party; (g) compliant with all laws and standards; and (h) free from any encumbrance or interest or right.
2.3 The Services must be (and it is a condition that they are) provided: (a) consistent with any description and details of the Services in the Purchase Order; (b) to an appropriate and reasonable standard having regard to the circumstances; (c) compliant
with any service level standards for the time being notified by the Company; and (d) compliant with all laws and standards.
2.4 The Company may, but the Vendor must not, vary the quantity, the description or details of the Goods or Services, by notice to the Vendor.
2.5 The Vendor acknowledges that nothing in the Contract creates an exclusive supply or service agreement or arrangement between the Company and the Vendor, and that the Company may procure goods or services (whether similar to the Goods or
Services or otherwise) from other suppliers at any time, without reference to the Vendor.
2.6 No Goods may be supplied or Services provided, and the Company will have no liability to pay for Goods or Services, unless a Purchase Order Number is included in the Purchase Order.
3. DELIVERY AND COMPLETION
3.1 The Vendor must deliver the Goods to the Delivery Point on the Delivery Date.
3.2 The Vendor must provide the Services by or until the Completion Date.
3.3 The Company may, but the Vendor must not, vary the Delivery Point, Delivery Date or Completion Date.
4. MANUFACTURE AND PACKING
The Vendor must ensure that the Goods (and all components of them) are manufactured, fabricated and assembled by individuals who are suitably experienced and qualified and supervised, and are packed, secured, stored and stowed so as to ensure
safe and secure transportation and storage, until delivered to the Company such that the Goods comply with clause 2.2.
5. TITLE AND RISK AND LICENCE
5.1 It is a condition that all legal title and the entire beneficial interest in the Goods passes to the Company unencumbered on the payment of the Price.
5.2 Risk in the Goods passes to the Company on acceptance of Goods, and as such the Company is not responsible for any damage or loss to any Goods before acceptance of them.
5.3 If a security interest (as defined in the Personal Property Securities Act 2009 (Cth)) arises under the Contract the Vendor may register that security interest at its cost, and must remove registration of that security interest at its cost immediately on the
circumstances giving rise to the security interest ceasing to apply.
5.4 The Vendor grants, or must procure the grant of, an unconditional and irrevocable non-exclusive, transferable, royalty-free licence to the Company to ensure that the Company and any third party to which the Company may on-sell the Goods is able to
enjoy fully the benefit of the Goods. For the benefit of the Company (both as principal and as agent for each of the Company Personnel), the Vendor unconditionally and irrevocably consents and waives (and will ensure that any other person consents and
waives) any act or omission that would otherwise infringe any third party right, including any moral right.
6. PERSONNEL
6.1 The Vendor must ensure that: (a) it employs or engages a sufficient number of Vendor Personnel to enable the Vendor to provide the Services in accordance with the Contract; and (b) the Vendor Personnel are appropriately trained, licensed, accredited
and experienced in undertaking any activity, function or task in connection with the Services; and (c) the Vendor Personnel are supervised by a person who has the requisite competence, experience, knowledge and qualifications to undertake that
supervision.
6.2 If required by the Company, the Vendor must ensure that all Vendor Personnel attend and participate in any induction training at the Service Location.
6.3 If the conduct of any Vendor Personnel results in or contributes to any non-compliance with the Contract or the behaviour of any Vendor Personnel is not otherwise acceptable to the Company, the Company may, by notice, in writing, in its absolute and
sole discretion, direct the Vendor to remove that Vendor Personnel and the Vendor must ensure that any such Vendor Personnel ceases to undertake any activity, function or task in connection with the provision of the Services or any other services to the
Company in future.
6.4 Without affecting the application of any other provision of the Contract, the Vendor must: (a) pay all costs and expenses incurred in relation to the employment or engagement of the Vendor Personnel (including all remuneration, insurances, taxes and
superannuation); and (b) comply with all laws, industrial awards and workplace agreements relating to the employment and engagement of the Vendor Personnel as employees or contractors.
6.5 Without affecting the application of any other provision of the Contract, and to the extent permitted by law, the Vendor, at its cost and expense and at no cost to the Company: (a) is responsible for the compliance with all laws relating to health, safety
and welfare; (b) is responsible for the health, safety and welfare of the Vendor Personnel accessing and using the Delivery Point, Service Location or any premises of the Company, and must ensure that none of the Vendor Personnel is exposed to any risk
to health, safety or welfare or to hazards arising from any activity, function or task whilst at the Delivery Point, Service Location or on any premises of the Company; (c) must ensure that the Delivery Point, Service Location and any premises of the Company
used by the Vendor in undertaking any activity, function or task is a safe working environment, that safe systems of work are used within it, that any equipment, facility, machinery, material and plant is safe, and that appropriate safety equipment is provided
to and maintained for use by the Vendor Personnel and that each of the Vendor Personnel uses the safety equipment provided; and (d) must provide information, supervision and training to ensure that each of the Vendor Personnel is safe and free from
any risk to health, safety or welfare whilst undertaking any activity, function or task at the Delivery Point, Service Location or on any premises of the Company.
7. INSPECTION AND DEFECTS
7.1 The Company may inspect and test the Goods and may, at any time before the expiry of any Defects Liability Period or Warranty, reject any Goods it considers to have any defect (Defective Goods).
7.2 If, on inspection or testing or at any time during any Defects Liability Period, the Company considers that any Goods are Defective Goods, by notice, in writing, the Company, at its option and in addition to any other remedy or right it may have, may
require the Vendor: (a) to refund any payment made in respect of any rejected Defective Goods and to collect those Defective Goods, at no cost or expense to the Company; (b) to make good Defective Goods, at no cost or expense to the Company, and to
reimburse the Company for any cost or expense incurred by the Company in hiring or procuring goods until the Defective Goods are made good; (c) to replace Defective Goods with new Goods that comply with the Contract, at no cost or expense to the
Company, and reimburse the Company for any cost or expense incurred by the Company in hiring or procuring goods until the Defective Goods are replaced; or (d) to reimburse the Company for any costs and expenses incurred by it in making good any
Defective Goods or replacing any Defective Goods with alternative goods from any third party.
7.3 If any Defective Goods are made good or replaced, a Defects Liability Period will apply from the date on which those replacement or made good Goods are delivered or redelivered.
7.4 No inspection, testing or acceptance of or payment for some or all of the Goods affects in any way: (i) any liability or obligation of the Vendor; or (ii) any remedy or right in respect of any cost, expense, damage, liability or loss, including the right to reject
any Goods.
7.5 Without affecting the application of any other provision, if any Goods benefit from any guarantee or warranty the Vendor must ensure that the Company receives the full benefit of that guarantee or warranty.
8. NON-COMPLIANT SERVICES
8.1 If the Company considers that any Services do not comply with the Contract, the Company, in its absolute and sole discretion, and in addition to any other right or remedy it may have, by notice, in writing, to the Vendor, require the Vendor to: (a) refund
to the Company any payment made by the Company for any Services; (b) perform again any Services at no cost or expense to the Company; or (c) reimburse the Company for any cost or expense that the Company incurs in performing the Services, in
whole or in part, itself or engaging an alternative service provider to perform the Services.
8.2 Any inspection, testing or acceptance of, or payment for, all or some Services does not in any way: (a) affect any liability or obligation of the Vendor; or (b) affect any remedy or right by the Company.
9. INDEMNITY AND INSURANCE
9.1 The Vendor must indemnify and keep indemnified the Company (both as principal and as agent for each of the Vendor Personnel) from and against any cost, expense, damage, liability or loss (Loss) suffered or incurred in relation to any breach of the
Contract, any negligent act or omission of the Vendor or any Vendor Personnel, any death or injury of any person or any damage to or loss of any property, any liability to any third party and any infringement of any third party right.
9.2 Liability under clause 9.1 will be reduced to the extent that the amount of any Loss results from any negligent act or omission of the Company or any Company Personnel.
9.3 The Vendor must effect and maintain, at its own cost and expense, with a reputable insurer: (a) workers compensation insurance, covering all claims and losses for death or bodily injury to any person employed or engaged by the Vendor or any
contractor of the Vendor; (b) motor vehicle and third party liability insurance covering liability for death or bodily injury to any person or damage to the Site, or any other property located on the Site, arising from the ownership, use, control, or possession of
any vehicles owned, used, controlled or operated by the Vendor at the Site up to a minimum of $30 million per event or series of events arising from one incident, and (c) products liability and public liability insurance in relation to legal liability for physical
loss of, loss of use of, damage to or destruction of real or personal property, death or bodily injury with a minimum limit of $20,000,000 per occurrence for public liability and in the annual aggregate for products liability; and (d) if the Delivery Point is the
Company’s site, inland and ocean transit risk insurance covering all loss or damage to the Goods arising from any insurable cause while in transit to the Delivery Point including loading and unloading risks at site.
9.4 The product liability and public liability insurance policy effected and maintained under clause 9.3(c) must contain a Principal’s indemnity clause (whereby the Company is indemnified for liability in relation to the obligations of the Vendor or any of its
contractors).
10. GST, INVOICING AND PAYMENT
10.1 The Price is exclusive of GST. To the extent that GST is payable in respect of any supply made by a party, the consideration under the Contract for that supply is increased by an amount equal to the consideration for the supply multiplied by the rate of
GST.
10.2 Within 5 days after the Invoice Period, the Vendor must issue a tax invoice to the Company for the Goods supplied and Services provided and each invoice must state the Purchase Order Number.
10.3 The Company will pay the amount of each tax invoice within the Payment Period, unless the tax invoice does not detail the Purchase Order Number, or it disputes any part of the tax invoice, in which case it will pay the part of the invoice not disputed.
10.4 The Company: (a) may deduct from any amount payable by it any amount that it may claim from the Vendor, including for any breach of the Contract; and (b) the Company may suspend the payment of any amount if the Vendor has not complied with
the Contract.
10.5 Notwithstanding any dispute as to any amount owed by a party to another, each party must continue to perform its obligations and discharge its liabilities and will continue to be entitled to exercise its rights, powers and remedies under the Contract.
10.6 The Price is inclusive of all taxes other than GST. The Vendor must indemnify and keep indemnified the Company (both as principal and as agent for each of the Company Personnel) from and against any cost, expense, damage, liability or loss in
relation to the amount of, or payment of, any amount other than the Price and the amount of any GST.
11. TERMINATION
11.1 The Company may terminate the Contract at any time by giving no less than 30 days’ notice, in writing, to the Vendor.
11.2 The Company may terminate the Contract by giving notice, in writing, to the Vendor, if the Vendor is in breach of the Contract and does not remedy that breach within 10 days after receiving notice, in writing, requiring it to remedy that breach.
11.3 On termination of the Contract under clause 11.1, the Company will cease all payments under the Contract and the Vendor must pay to the Company any amount paid in respect of any Goods not supplied or Services not provided, or any Goods
supplied or Services provided but which do not comply with the Contract.
11.4 Termination of the Contract will not affect any right, power, remedy, obligation, duty or liability of any party under the Contract which have accrued to the date of termination, which right, power, remedy, obligation, duty and liability will continue to be
enforceable.
11.5 Other than an expressly provided for in this clause 11, the Company will not be liable to the Vendor or to any other person as a consequence of termination of the Contract.
11.6 To the extent permitted by law, other than as provided in the Contract, neither party has any right to terminate the Contract.
12. CONFIDENTIALITY
12.1 The Vendor may be provided with, or may become aware of, information for the purposes of or in supplying the Goods or providing the Services and that information may be confidential to the Company. The Vendor must not, and must ensure that no
Vendor Personnel discuss with, or provide to, any person any information that is provided to it or to any Vendor Personnel or of which it or any Vendor Personnel becomes aware, unless required to do so by any court or law.
12.2 The Vendor must not make and must ensure that no Vendor Personnel makes any public statement in relation to the Company or the Contract.
12.3 The Vendor must indemnify and keep indemnified the Company (both as principal and as agent for each of the Company Personnel) from and against any cost, expense, damage, liability or loss in relation to any disclosure of information or statement
contrary to clause 12.1 or clause 12.2.
12.4 This clause 12 survives for a period of 5 years after the termination of the Contract or such other period as may be necessary to comply with law.
13. GENERAL
13.1 The Contract is contractual only and does not create a relationship of employment, agency, partnership or joint venture between the parties.
13.2 The Contract constitutes the entire agreement between the parties as to its subject matter, and each party acknowledges and warrants that it is does not intend that any other term or document is or should be incorporated (by reference or otherwise).
For the benefit of the Company, it is a condition of the Contract that any term put forward by the Vendor (in any context) is not incorporated into the Contract.
13.3 Other than as provided for in these terms, the Contract may not be amended, supplemented or varied other than in writing signed by each party.
13.4 Any remedy or right in relation to the Contract may be waived only in writing signed by the party entitled to the benefit of that remedy or right and is effective only to the extent waived in writing.
13.5 In respect of any indemnity it is not necessary for a party to incur or suffer any cost, expense, damage, liability or liability or to make payment before enforcing any right under any indemnity, any amount demanded under any indemnity must be paid on
demand, and any indemnity survives termination of the Contract.
14. ASSIGNMENT
The Company may, but the Vendor must not (without the prior consent, in writing, of the Company), assign, transfer, charge or deal in any other way with the benefit of any right (or agree to do so), or create or declare (or agree to do so), or allow to arise,
any trust in respect of the benefit of any right conferred by or arising under the Contract or transfer any obligation or liability arising under the Contract.
15. SUBCONTRACTING
15.1 The Vendor must not allow any person to undertake any activity, function or task in relation to the Goods or Services unless the Company has been notified, and the Company has not objected.
15.2 Notwithstanding that any person undertakes any activity, function or task in relation to the Goods or Services, the Vendor is liable to the Company for any non-compliance with the Contract.
16. GOVERNING LAW
16.1 The Contract is governed by the law applicable in the Relevant State.
16.2 Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of the Relevant State.
