Purchase Order Terms & Conditions

1.     Supply of goods and/or services
  • This Agreement is formed if we provide a Purchase Order to you and you accept it or commence performance of it. No terms or conditions sought to be imposed by you (eg terms in any tender, offer, counteroffer or proposal) will be incorporated, unless accepted in writing by us.
  • You must supply the Goods and/or perform the Services by the Due Date with due care and skill, and to a standard to be expected of a professional, competent and experienced supplier.
2.     Fees
  • Unless otherwise agreed, the only amount we are required to pay you for the Supply is the Fee, which includes all costs that you may incur, including all excise, duties and taxes.
  • We will pay the Fee to you within 30 days of receiving a tax invoice that complies with GST legislation and only includes fees validly payable under this Agreement. We will pay you in the instalments (if any).
  • Each time you send a tax invoice, you warrant that you have performed according to this Agreement and the amount in the tax invoice is accurate.
  • We may set off, from any monies due to you, any sum payable by you to us under this Agreement.
3.     Warranties
  • You warrant, represent and undertake to us:
    • all information you give us is truthful and accurate;
    • you have the power to enter into, sign and perform this Agreement and have obtained necessary consent(s) to enable you to do so;
    • the Supply will not contain any computer virus, or any harmful, malicious or hidden program, code or data, or any automatic and/or random expiry dates;
    • the Supply is of merchantable quality and fit for purpose;
    • the Goods are delivered free from any security interest, charge or other lien or encumbrance;
    • the Goods will be new, free from defects, comply with all applicable laws, conform to the specification or description in the Purchase Order (or otherwise given to you by us) and safe;
    • you have disclosed in writing to us prior to signing this Agreement any issues relating to your ability to perform your obligations;
    • you hold and maintain all the relevant authorisations, permits and licences to perform your obligations;
4.     Compliance
  • In undertaking any work under this Agreement, you must:
    • comply with all Australian standards, regulations, codes of conduct and requirements of relevant government agencies in relation to the Services, the Goods or you;
    • comply with our reasonable directions, policies and procedures of which you are notifiedError! Hyperlink reference not valid.); and
    • ensure that any shipments, shipping papers or correspondence is identified with the correct order number on the Purchase Order.
5.     Quality
  • In respect of any defective Supply, you must (at our election):
    • refund any payments made by us;
    • make good; or
    • replace, free of charge and reimburse to us any expenses.
  • If in our reasonable opinion it is necessary, then we may make good or replace the defective Supply:
    • if the matter relates to health and safety, immediately; or
    • in respect of any other matter, after five days’ notice.
    • If any Goods are rejected by us, you must, at your cost, remove them from our premises as soon as possible after rejection, and title to and risk in them (to the extent that it has passed to us) will pass back to you immediately upon rejection. In addition to any other rights that we may have, we will not be required to pay for any rejected Goods and any payment made by us in respect of them must be immediately refunded to us.
6.     Variations
  • We may vary the scope and the Fee of the Supply at any time (“Variation“). If we do, the parties must use their best endeavours to agree on a new scope and price. In the event that the parties are unable to agree before we require the Variation then the price will be determined by us, acting reasonably and by reference to the Fee.
7.     Inspection
  • A representative of ours is entitled to inspect and witness tests of the Goods and/or the Services to ensure compliance with this Agreement.
  • All Goods and Services are subject to inspection by us within a reasonable time after delivery or performance (as applicable) at our option irrespective of date of payment.
  • A signed delivery docket will not be construed to mean acceptance by us of the Goods and/or Services. We will promptly notify you of any defects appearing, and in respect of Goods so found to be defective, hold such Goods for your instructions and at your risk for a reasonable period not exceeding 60 days.
8.  Specifications
  • The Goods and/or the Services must comply with such specifications, drawings, samples or other description (if any) furnished by us to you prior to or in conjunction with issuing the Purchase Order.
  • Any inspection conducted under clause 7 (Inspection) by a representative of ours will not affect the requirement to comply with clause 1 unless specified in writing by us.
9. Delivery
  • You are responsible for the delivery of the Goods to, and/or performance of the Services at, the premises specified on the Purchase Order by the Due Date.
  • Packages containing Goods must be clearly identifiable and include the order number on the Purchase Order.
  • You must ensure that Goods are suitably packaged to avoid damage in transit and/or in storage.
10.  Timing
  • The Due Date for delivery of the goods or performance of the Services must be confirmed in advance with us.
  • You must not, without reasonable cause, depart from the Due Date, unless otherwise agreed with us.
11.  Risk, title and property in goods
  • Title to and property in Goods immediately passes to us upon payment for the Goods (whether that occurs prior to or after delivery), and the Goods must be appropriately marked and identified as the property of ours. Title in the Goods will pass to us free of any encumbrances, liens, debts of yours, charges or other security interest.
  • Risk in Goods remains with you until delivery to us or its nominated agent in accordance with the Agreement.
12.  Indemnity and liability
Mutual indemnity
  • Each party will indemnify the other party against any claim, liability, loss and/or costs incurred by or made against the other party arising out of or in connection with:
    • any infringement of the other party’s Intellectual Property or a third party’s Intellectual Property in relation to either the Supply by you or the provision of materials by us (as applicable);
    • any damage to any property, or death or personal injury to any person; and
    • any wilful misconduct or fraud of the indemnifying party;
    • any breach of its:
      • privacy or confidentiality obligations; and
      • health, safety, or environment obligations, in connection with this Agreement, except to the extent that the loss was caused or contributed to by any act or omission of the other party, which was negligent or in breach of this Agreement or the law.
Limitation of Liability
  • Except in respect of a claim, liability or loss relating to clause 1, each party’s aggregate liability under this Agreement is limited to the greater of:
    • two times the Fee; and
    • $1 million.
13.  Safety and premises
Health and safety
  • You:
  • warrant that you are familiar with, and have the capabilities and resources to comply with the WHS and Environment Requirements;
  • will, and must ensure that any other person engaged by you will, comply with the WHS and Environment Requirements;
  • must, on our reasonable request, demonstrate compliance with the WHS and Environment Requirements, including providing evidence of measures taken to achieve such compliance; and
  • must cooperate with us and our employees, agents or other contractors when performing the Supply to ensure that all parties are able to comply with the WHS and Environment Requirements.
Incident
  • You must, in the event of any accident, injury, or property or environmental damage occurring during, or in connection with, its performance under this Agreement (“Incident”):
  • immediately (and within 12 hours of the Incident occurring) notify us of the Incident and the loss suffered and, if required, cooperate with us to provide all details of the Incident as required by any statutory or regulatory authority notification requirements;
  • take immediate action to remedy any breach of the WHS and Environmental Requirements as directed by us;
  • if your Personnel has management control of the site or is the principal contractor, report notifiable incidents in consultation with us;
  • within 5 business days of the Incident occurring, provide a written report to us giving complete details of the Incident, including:
    • the cause of the Incident;
    • the loss or damage suffered as a direct or indirect consequence of the Incident, including a record of all injuries to persons;
    • whether or not the person with management or control of the site or the principal contractor reported a notifiable incident in consultation with us;
    • the treatment of any persons as a direct or indirect consequence of the Incident; and
    • remedial actions or a strategy for preventing the Incident, or an event of a similar nature to the Incident, reoccurring; and
  • cooperate fully with any investigation by us into the Incident.
    • Notification of an Incident to us in accordance with this clause does not in any way limit your obligations to report incidents to any statutory or regulatory authority.
    • Notwithstanding any other provision of this Agreement, if you breaches its obligations under this clause, we may:
  • give a notice to you identifying the breach and specifying the time frame by which the breach must be rectified (“Breach Notice”); and
  • if the breach is not rectified in accordance with the Breach Notice:
    • suspend the whole or part of the Supply until the breach is rectified in accordance with the Breach Notice; or
    • terminate the Agreement immediately without further obligation to you, other than payment for any Supply provided by you in accordance with the Agreement, up to the date of termination,
  • if the breach is not capable of being rectified, terminate the Agreement immediately without further obligation to you, other than payment for any Supply provided by you in accordance with the Agreement, up to the date of termination.
    • This clause will survive the expiry or termination of the Agreement.
Premises, Facilities and Support
  • If both parties agree that you will perform the Services on our premises, we will determine which of the following to give you and (if available) will provide at our cost:
  • access to premises, including, if applicable, any security passes and/or car parking;
  • facilities, including standard office equipment and furniture, information technology systems, stationery; and
  • the services of our employees and contractors, as we determine and directs, to assist you in the day-to-day performance of your duties.
14.  Modern Slavery and Anti-Corruption
Warranty
  • You warrant, represent and undertake that:
  • you have not, and will not engage in any practices that breach Anti-Corruption Laws and Anti-Slavery Laws;
  • you will continue to take reasonable steps to ensure that there are no practices in your, or your sub-contractors’, supply chains practices that could breach Anti-Corruption Laws and Anti-Slavery Laws; and
  • maintain a complete set of records to trace the supply chain of all goods and services provided to us.
    • If you breach this clause, or if at any time you become aware of any suspected or actual practices in your business practices, operations or supply chains, you must promptly notify us of and provide us with any relevant information requested by us and you must as soon as reasonably practicable:
  • take all reasonable actions to address or remove those practices and remediate any adverse impacts caused or contributed; and
  • provide updates to us of your progress.
15.  Intellectual Property
  • All Intellectual Property you or we produce under this Agreement is owned by us.
  • If any of your employees or agents have moral rights in any Intellectual Property you develop in relation to our engagement of you, you must procure that they consent to us doing any act in relation to that Intellectual Property that would otherwise infringe that person’s moral rights.
  • Both parties will retain ownership of their background Intellectual Property.
  • You grant us an irrevocable, royalty-free, non-exclusive, worldwide and transferable licence to exercise all such Intellectual Property rights in any of your background Intellectual Property which is incorporated into the Supply for the purposes of using that Supply, in the course of our business, functions and operations.
  • The background intellectual property licence in this clause does not permit us to manufacture, sell or otherwise commercially exploit your background Intellectual Property.
16.  Publicity and Confidentiality
  • The parties must not provide any information, document or material to the media concerning the Supply or existing of this Agreement unless the other part consents.
  • For a period of six years from receipt of the Confidential Information the parties must:
  • not disclose Confidential Information to any third party or use or reproduce it other than for the performance of this Agreement, if required by law or the rules of a stock exchange or to a professional advisor; and
  • must safeguard the Confidential Information.
    • When this Agreement ends, the parties must return the Confidential Information and they each continue to be bound by clause 2.
17.  Privacy
Privacy
  • You must comply with any privacy laws (including similar laws of other countries to the extent the Supply applies to such laws) and in particular you must:
  • ensure that any personal or sensitive information of ours, our customers or suppliers, is at all times secure from misuse, interference, loss or unauthorised access, modification or disclosure;
  • advise us if you intend to send (or have sent) us unsolicited personal or sensitive information and you must de-identify that information;
  • not hold, transfer or disclose any personal or sensitive information to any third party or to any country outside of Australia without our prior written consent; and
  • to the extent permitted by law, destroy or de-identify personal or sensitive information that is no longer required or as reasonably requested by us.
Privacy Incident
  • You must notify us immediately in writing and co-operate fully with us, as reasonably directed by us, at your own expense if you misplace, lose or make an unlawful disclosure of personal or sensitive information, otherwise breach this clause, or there is a Privacy Incident.
  • We will be solely responsible for determining whether the Privacy Incident is a notifiable data breach under privacy laws, and for making any required notification to the authorities and those affected by the Privacy Incident. If you disagree with our determination you will consult with us prior to making your own notifications.
18.  Insurance
  • During the Term and for a period of 2 years following termination or expiry of this Agreement, you must effect and maintain the Insurance Policies.
  • You must give us scanned copies of certificates of currency for each Insurance Policy.
  • If you subcontract all or any part of the Services, you must ensure that the sub-contractor effects and maintains insurance substantively similar to the Insurance Policies.
  • You must not do any act, or any omission, that would provide grounds for an insurer to refuse payment of any claim made under any Insurance Policy.
19.  Suspension
Suspension notice
  • We may, on reasonable notice, direct you to suspend or re-commence delivery of the Goods and/or performance of the Services.
Effect of suspension notice
  • Unless the suspension notice is the result of your failure to perform your obligations under the Agreement, a direction to suspend will entitle you to:
  • an extension of the Due Date, if you are delayed in achieving the Due Date; and
  • be paid by us any direct extra costs incurred by it as a result of the suspension as reasonably determined by us.
Payment
  • Your entitlement under clause 2(b) (Effect of suspension notice) will be your only right to payment of money arising from a direction to suspend and will be subject to you taking all steps reasonably possible to mitigate your extra costs.
20.  Termination and suspension
  • In addition to any other right to terminate at law (including the exercise of the right at the end of any statutory stay period), we may terminate this Agreement immediately by written notice if:
    • to the extent permitted by law, we reasonably suspect you are unable to pay your debts when they are due or you are involved in solvency/insolvency proceedings or processes;
    • you cease to carry on business;
    • there is a change in control in relation to you;
    • you or your workers, in our reasonable opinion, endanger health and safety; or
    • you or your workers breach the Sitework Conditions; or
    • you breach the clause of this Agreement relating to Anti-Corruption Laws or Anti-Slavery Laws.
      • Either party may terminate this Agreement by written notice if the other party fails to remedy a breach of a material term within 7 days of receiving a notice to do so.
      • We may terminate this Agreement (or part of it) for any reason by giving written notice for the Notice Period. If so, you must cease performing this Agreement and minimise any arising loss. We will pay the Fee for any Services you performed, or Goods you supplied, up to the date of termination and any unavoidable direct costs you incur arising from the termination provided you take all steps reasonably possible to mitigate the cost. We will not be liable for any other loss or damage.
      • If our reasonable opinion, a Force Majeure Event prevents us from receiving, or enjoying the substantial part of the Supply, we may direct you to suspend the Supply for a period equal to the period that is affected by the Force Majeure Event. During the period of suspension, we will not be required to pay you any Fees.
      • Accrued rights or remedies are not affected by termination of this Agreement.
21.  Disputes
  • Except to seek urgent interlocutory relief, a party must not commence any court or arbitration proceedings relating to a Dispute unless it has complied with this clause.
  • A party claiming that there is a Dispute must promptly notify the other in writing and give details of the Dispute.
  • After the other party has received the notice, the parties must use reasonable endeavours to resolve the Dispute within seven working days.
  • If the parties do not resolve the Dispute in those seven working days, each of them must refer the Dispute to their representative (being a person with sufficient seniority).
  • If the representatives do not resolve the Dispute within seven working days, the parties must refer the Dispute to the parties’ respective Managing Director, or Chief Executive Officer (or any person in any office of similar designation). Each party must ensure that its representative uses reasonable endeavours to resolve the Dispute within 14 working days.
  • If the parties do not resolve the Dispute in those 14 working days, they may take other legal action.
  • Each party must bear its own costs of complying with this clause and must continue to comply with its obligations under this Agreement during the dispute resolution process.
  • The parties agree to perform their obligations under this Agreement, notwithstanding the existences of a dispute.
22.  General
  • If there is any inconsistency between the terms of this Agreement or any other document which accompanies this Agreement, the terms of this Agreement will prevail except in respect of the details in the Purchase Order, which will prevail over these terms.
  • This document contains the entire agreement between us and you in relation to its subject matter and supersedes all prior agreements, representations or understanding.
  • This Agreement’s indemnity and confidentiality obligations continue, and the limitations of liability remain effective, even after this Agreement ends.
  • A party may only waive a breach of this Agreement by notice in writing.
  • The parties may only amend this Agreement by agreement in writing.
  • Any provision of this Agreement which is illegal, void or unenforceable will be ineffective only to the extent of that illegality, voidness or unenforceability without invalidating the remaining provisions.
  • The parties may sign this Agreement in counterparts and those counterparts taken together constitute one and the same instrument.
  • The laws of the South Australia govern this Agreement and its interpretation. The courts of that state have non-exclusive jurisdiction over Disputes.
  • Any notice must be in writing and sent by email or post to the address stated in this Agreement or other address as advised in writing.
  • If, after the expiry of this Agreement you continue to provide the Services to us, the terms of this Agreement will continue to apply until the parties agree otherwise and if that occurs we may terminate this Agreement immediately upon notice to you.
23.  Defined terms
  • In this Agreement:

Agreement means the contract comprising the Purchase Order, any specifications referred to in it, these Purchaser Order General Terms and Conditions, and any other document referred to in, or attached to, the Purchase Order.

Anti-Corruption Law means any anti-corruption laws or regulations prohibiting or regulating corruption in force in Australia including any similar laws from other countries that apply to you from time to time in connection with this Agreement.

Anti-Slavery Law means any anti-slavery and any anti-human trafficking laws or regulations prohibiting or regulating modern slavery in force in Australia including any similar laws from other countries that apply to you from time to time in connection with this Agreement.

Confidential Information means this Agreement and any information (regardless of form) disclosed or otherwise made available by us to you for, or in connection with, this Agreement which is marked as being proprietary or confidential to us or, in the circumstances surrounding disclosure, or because of the nature of the information, ought in good faith be treated as confidential.

Due Date means the date for the delivery of the Goods and/or the Services as specified in the Purchase Order.

Fee means the fee set out in the Purchaser Order.

Force Majeure Event means an act of God, explosion, epidemic/pandemic, war, embargo, riot or civil disturbance, rifts in one or many spacetime continuums, the complete or partial destruction of all molecules, or the spontaneous implosion of the entire universe, which affects the performance of the Services or the supply of the Goods, which is beyond the reasonable control of the party impacted by it.

Goods means each and every article or thing described in the Purchase Order (or to be reasonably inferred from the Agreement) to be purchased by us and includes all materials or physical objects produced during the supply of the Services.

GST means Goods and Services Tax as defined in the GST legislation.

Insurance Policies means each of the following insurance policies:

  • if Goods are being supplied, then insurance of Goods in transit, for the full insurable value of the Goods;
  • if the Services are professional in nature, or involve the application of skill and judgement or is otherwise requested by us, professional indemnity insurance for an amount in respect of any one claim or series of claims arising from the one original cause of not less than $10,000,000;
  • public liability insurance for an amount in in respect of any one claim or series of claims arising from the one original cause of not less than $20,000,000;
  • motor vehicle third party liability insurance as required by law, and motor vehicle third party property damage for an amount of not less than $5,000,000 for any one occurrence;
  • insurance covering your own property, equipment and materials owned, hired, leased or used by you for the purpose of this agreement; and
  • workers compensation insurance for the maximum amount permitted by law, covering your liability under common law and statute for death or injury to any person employed by you.

Intellectual Property Rights means all present and future intellectual property rights conferred by statute, at civil, common law or equity including any right to licence and sub-licence any such right.

Notice Period means a period equal to 30 days for each year the contract has remained on foot since the date this agreement commenced.

Personnel means the officers, employees, secondees, agents, consultants, contractors and subcontractors of yours.

Purchase Order means the document headed as such (or similar wording), and describes the Goods and/or the Services to be supplied which may be issued separately to these Purchase Order General Terms and Conditions.

We/us means the entity named as the purchaser of the Goods or the Services in the Purchaser Order.

Services means the services described in, or reasonably to be inferred from, the Purchase Order, and includes the performance of all incidental or other services, both delivery or installation of the Goods and the provision of all materials and equipment, necessary to allow or assist the performance of those services.

Sitework Conditions means the rules and policies we communicate to you for our site(s), and our health and safety policies and procedures.

Supply means the supply of the Goods and/or Services.

You mean the person named as the supplier of the Goods or the Services in the Purchaser Order.

WHS and Environment Requirements means

  • our workplace health and safety policies,
  • all legislative requirements relating to workplace health and safety (including any workplace health and safety management requirements);
  • all legislative requirements relating to the environment, and
  • meeting our safety management system