General Terms and Conditions of Purchase Order
1. Definitions and interpretation
The following definitions shall be used for the purpose of interpreting the General Terms and Conditions of Purchase Order (“General Conditions”):
(a) “day’’ means calendar day
(b) “Delivery” means the physical receipt of possession and control of the Goods from the Supplier by the Purchaser, or an agent nominated by the Purchaser, in satisfaction of the Supplier’s obligations under the Purchase Order, and “deliver” and “delivered” have corresponding meanings.
(c) “Delivery Date” means the date specified in the Purchase Order as the date by which the Supplier must deliver the Goods to the delivery place.
(d) “FOT” means delivery of the goods at the nominated delivery point free on truck (or other transport), including full responsibility and all associated costs for packing, loading, transport and insurance of the Goods (for their full replacement value).
(e) “Goods” means all goods, materials, article, plant, equipment, parts or any other property or services of any kind to be supplied, delivered or performed by the Supplier under the terms of the Purchase Order, and includes, without limitation, all associated activities, such as design, manufacture, painting, inspection, testing, quality assurance and control, packing and delivery as required under the Purchase Order, or as appropriate to the items/services being provided, where not specifically mentioned in the Purchase Order.
(f) “Intellectual Property Rights” means all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including but not limited to patents, patents applications, trade secrets, know-how, rights in relation to design and to registered and unregistered trademarks.
(g) “Purchaser” means the entity ordering the goods, as identified in the Purchase Order.
(h) “Purchase Order” means the purchase order issued by the Purchaser to the Supplier, comprising:
(i) The Purchase Order form containing the description of the Goods, applicable prices and delivery details, including Special Conditions as applicable;
(ii) General Conditions (this document);
(iii) Specifications; and
(i) “Supplier” means the person (including an individual, firm or corporate entity) providing the Goods, as identified in the Purchase Order.
(j) “Warranty Period” means the period commencing on the date of the Purchaser’s acceptance of the final supply of the Goods to the specified delivery location, and extending for a minimum period of twelve (12) months thereafter unless otherwise stated in the Purchase Order.
2. Purchase Order
The Purchase Order constitutes the entire agreement between the Purchaser and the Supplier. The Purchaser shall not be bound by or be liable for any statement, representation, promise or understanding not set forth herein.
The Purchase Order supersedes and overrides any Supplier’s terms and conditions of sale, whenever established and / or referred to by the Supplier’s quotation, invoices or other documentation.
The Purchase Order can only be modified by the express written authorisation of the Purchaser.
3 Supplier to inform itself
The Supplier shall be deemed to have carefully examined all documents furnished by the Purchaser and fully satisfied itself regarding and allowed for all the conditions, risks, contingencies and other circumstances which may in any way affect the supply of the Goods.
4 Precedence of Purchase Order documents
If the Supplier notices any ambiguity or discrepancy in the Purchase Order documents, it shall immediately notify the Purchaser in writing. The Purchaser shall then determine the correct interpretation which shall be final and binding on the Supplier, following the order of precedence of the documents comprising the Purchase Order as listed in clause 1 (h).
5 Intellectual Property and Confidentiality
5.1 The Supplier warrants that the Supplier is the owner or valid licensee of all Intellectual Property Rights in the Goods and that the supply of the Goods and their use by the Purchaser does not and will not infringe any Intellectual Property Rights of any third party.
5.2 The Supplier grants the Purchaser a perpetual, royalty free license of any Intellectual Property Rights required to use, consume or sell the Goods to the Purchaser’s own clients, and the Supplier indemnifies the Purchaser against any loss suffered or incurred by the Purchaser or by the Purchaser’s clients as a consequence of any claim by a third party with respect to the Intellectual Property Rights.
5.3 Any information provided by the Purchaser to the Supplier, including but not limited to the Purchase Order documents, shall not be copied or used for any purpose other than for providing the Goods, and shall not be disclosed to any third party without the prior written consent of the Purchaser. The obligations under this clause shall be continuing and shall survive the completion or termination of the Purchase Order.
No failure or delay on the part of the Purchaser in exercising any of its rights under the Purchase Order shall be construed as constituting a waiver of any such rights.
7 Subcontracting and Assignments
The Supplier must not subcontract nor assign all any part of the Purchase Order without the prior written approval of the Purchaser. The Purchaser’s approval shall in no way relieve the Supplier of any of its obligations under the Purchase Order.
Any notice or other communication under the Purchase Order shall be delivered in writing, in English, sent by prepaid post or email to the recipient’s address specified in the Purchase Order form.
Verbal instructions or directions from the Purchaser shall be confirmed in writing within a reasonable time.
9 Licenses and Laws
The Supplier shall comply with applications laws, ordinances, regulations, orders and rules, and with the lawful requirements of Public and other Authorities in any
way related to the supply of the Goods.
10 Indemnity and Insurances
10.1 The Supplier shall fully indemnify and hold harmless the Purchaser and its officers, employees and agents against all claims, demands, proceedings, liabilities, costs, charges and expenses arising as a consequence of any act, omission, neglect or default of the Supplier or its employees, agents or subcontractors related to its obligations under the Purchase Order.
10.2 The Supplier shall effect and maintain the following insurance policies, and provide evidence to the Purchaser on request:
(i) insurance for the Goods for their full replacement value for the period the Supplier is responsible for loss or damage in accordance with clause 16.
(ii) public and product liability insurance for not less than $10million unless otherwise specified in the Special Conditions.
(iii) such other insurances as required by law.
11 Consequential losses
Neither the Purchaser nor the Supplier shall be liable to the other, whether for breach of contract, under indemnity, in tort (including for negligence) or on any other basis in law or equity for loss of use, production, profit, contract,
revenue, business interruption or for any financing costs or increase in operating costs, or for any consequential, indirect or special loss arising out of or in connection with the Purchase Order.
12 Testing, inspection and acceptance
12.1 The Goods shall be tested in accordance with the requirements of the Purchase Order, and unless otherwise specified in the Purchase Order, all tests and the costs thereof shall be the responsibility of the Supplier.
12.2 The Purchaser shall have the rights to inspect, independently test, monitor and expedite the Goods at any time prior to Delivery, and the Supplier shall
facilitate prompt access for the Supplier’s and any of its subcontractors premises for such purposes during normal working hours.
The Goods shall not be deemed to be accepted by the Purchaser until the test required and the Supplier’s quality assurance documentation confirming full compliance of the Goods with the requirements of the Purchase Order have been
provided by the Supplier, and the Goods have been inspected and approved by the Purchaser. Inspection and /or testing by the Purchaser shall neither relieve the
Supplier from its obligations under the Purchase Order nor waive the Purchaser’s rights and remedies provides under the Purchase Order or otherwise.
12.3 The Supplier shall maintain and implement an acceptable quality assurance system that demonstrates that the Goods fully comply with the quality standards
specified in the Purchase Order. If no particular standards are specified in the Purchase Order, the Supplier shall demonstrate that the Goods comply with the highest quality standards applicable to the class of Goods concerned.
13.1 The Supplier represents and warrants that it has the skills, experience and resources to successfully supply the Goods in accordance with all the requirements of the Purchase Order.
13.2 The Supplier warrants that the Goods:
(i) are fit for their intended purposes, new and made to the specified quality, free from any liens, charges or encumbrances, and free from defects in design, materials and workmanship for the duration of the Warranty Period; and
(ii) conform to all applicable laws, regulations, statutory requirements, codes and Australian Standards.
13.3 The above warranties are in addition to the specific warranty included in the Special Conditions, if any, and are provided by the Supplier for the benefit of both the Purchaser and the Purchaser’s clients, to whom the Supplier’s warranties are transferred on the Purchaser’s request.
14 Defects and rectification
14.1 If any of the Goods as supplied do not comply with the Specifications or are otherwise not in accordance with the Purchase Order at any time before Delivery or during the Warranty Period, the Purchaser shall give written notice to the Supplier of any failure or defect identified in the Goods and the Purchaser may at its election:
(i) require that the Supplier without delay and at the Supplier’s cost correct any failure or defect identified in the Goods by way of replacement, repair appropriate modification or other means acceptable to the Purchaser;
(ii) require that the Purchaser be credited in respect of any amount that the Purchaser has paid for the Goods; or
(iii) return all of the Goods to the Supplier at the Supplier’s cost and cancel the balance of Purchase Order.
14.2 Any goods rectified under warranty shall be subject to a further Warranty Period, commencing from the date of completion of such rectification, unless otherwise directed in writing by the Purchaser.
14.3 The Supplier indemnifies the Purchaser for any cost, loss, damage or expense arising out of or in connection with the return or cancellation of the Goods pursuant to clause 14.1, including the cost of freight and packaging.
14.4 If the Supplier fails to correct any defects or failures in the Goods of which have been notified by the Purchaser within the time specified in the notice (which shall not be unreasonable), the Purchaser shall have the right to rectify the Goods itself or have the necessary rectification undertaken by the third party. All costs so incurred by the Purchaser shall be debt due and recoverable from the Supplier, from any moneys otherwise owed by the Purchaser to the Supplier.
15 Delivery Requirements
Unless otherwise specified in the Purchase Order, the Goods shall be delivered FOT, adequately packaged and protected to ensure safe delivery, to the delivery locations(s) and by the Delivery Date(s). Each Delivery shall be accompanied by a delivery docket showing the Purchase Order number and the quality and nature of the Goods being delivered. Each delivery docket must be signed by a duly authorised representative of the Purchaser at the delivery point.
16 Ownership and responsibility
16.1 The Goods shall become the property of the Purchaser upon Delivery, as evidenced by the corresponding delivery docket signed by the Purchaser’s duly authorised representative, or upon payment, whichever comes first.
Notwithstanding that the Purchaser has taken delivery of the goods, the Supplier shall remain responsible for any loss or damage to the Goods which may have occurred prior to its acceptance.
16.2 The Purchaser may reject any Goods which, in its reasonable opinion, do not conform with the requirements of the Purchase Order, and the Supplier agrees that the Purchaser is not liable to pay for any rejected Goods.
17.1 The Supplier must supply the Goods in accordance with the terms of the Purchase Order by the Delivery Date.
17.2 The Supplier shall take all reasonable steps to minimise and prevent any delay to the delivery of Goods and shall promptly notify in writing the Purchaser of any event or circumstance which is likely to cause delay with respect to the Delivery Date.
17.3 If the Supplier fails to deliver the Goods by the specified Delivery Date, the Purchaser shall be entitled to terminate the Purchase Order for default, either in whole or in part, in accordance with the provisions of the clause 19.
The Purchaser may direct the Supplier by a notice in writing to perform a variation and the Supplier shall carry out any such variation as directed.
A variation may consist of the inclusion of other goods as Goods to be supplied under the Purchase Order and / or in a change in the character, quality or quantity of the Goods.
The Supplier’s price (addition or reduction) for any variation and any effect on the Delivery Date shall be preferably agreed between the Purchaser and the Supplier prior to the Supplier carrying out any such variation. Failing such agreements the Purchaser shall determine the price for the
variation and the delivery date for the Goods. The Supplier shall not vary the work under the Purchase Order or any condition thereof, except as directed and approved by the Purchaser in writing. No variation ordered by the Purchaser shall invalidate the Purchaser Order.
19.1 In the event of a substantial breach of any of the terms or conditions of the Purchase Order, which in the opinion of the Purchaser may significantly delay or impair the completion of the Purchase Order and which is not remedied within seven (7) days of the Purchaser written notice, the Purchaser may terminate the Purchase Order and the Supplier shall be liable for all loss and damage incurred by the Purchaser.
19.2 If, in the opinion of the Purchaser, the Supplier is unable to effectively perform the obligations under the Purchase Order due to insolvency, bankruptcy, or related reasons, the Purchaser may terminate the Purchase Order with immediate effect.
19.3 Notwithstanding any other provisions of the Purchase Order, the Purchaser may for its convenience terminate the Purchase Order by giving seven (7) days written notice to the Supplier.
19.4 In the event of termination under clause 19.1 or clause 19.2, the Purchaser shall immediately suspend any further payment to the Supplier. Any costs to complete the Purchase Order in excess of the amount the Purchaser would have been required to pay the Supplier under Purchase Order, shall be a debt due by the Supplier to the Purchaser.
19.5 In the event of termination under clause 19.3, the Purchaser shall pay the Supplier for the work carried out prior to termination, and the reasonable documented costs associated with the cancellation of any orders placed by the Supplier in connection with the Goods prior to termination.
20. Price and payment
20.1 Unless otherwise stated in the Purchase Order, all prices are fixed and not subject to any variation, including but not limited to variation in the cost of labour, material or exchange rates.
20.2 The Supplier shall be responsible for the payment of all relevant Australian (Federal, State and Local Government) and overseas taxes, duties and charges with respect to the Goods. The Purchase Order price is deemed to be inclusive of all such taxes, duties and charges.
20.3 Unless otherwise specified in the Purchase Order, invoices for payments shall be submitted to the Purchaser following Delivery, and payments of the approved amount shall be made by the Purchaser no later than thirty (30) days from the first day of the month following the month of receipt of the invoice. The invoices shall include the Purchase Order number as a pre-condition for their approval and payment.
21. Personal Property Securities Act 2009 (Cth) (PPSA)
21.1 If the Supplier believes that a Security Interest arises under the Purchase Order, it must notify the Purchaser at least 5 business days before the Supplier takes steps to register such security interest on the PPSA Register.
21.2 Within 10 business days of the earlier of the completion or termination of the Purchase Order or the receipt of the price for the Goods, the Supplier will at its cost procure the removal from the PPSA Register of each security interest it has registered in respect of the Goods, and must provide the Purchaser with verification of the removal pursuant to section 157 of the PPSA.
21.3 The parties agree that for the purposes of section 115 of the PPSA the following sections will not apply to any Relevant Collateral: section 120 (enforcement of liquid assets), section 126 (apparent possession) and section 128 (secured party may dispose of collateral).
22. Applicable law
Unless otherwise specified, the Purchase Order shall be governed and construed in accordance with the laws in place in the State of New South Wales.
23. Specific Conditions for the Supplier’s activities on site
23.1 This clause 23 applies to the Supplier’s activities and/or services to be carried out on the site/s where the Purchaser is engaged to perform work for its clients (here after called ‘site activities’).
23.2 With respect to Health and Safety, the Supplier must comply at its cost with the legislative requirements and with the Health and Safety policies in place on site, as established by the Purchaser and / or by the Purchaser’s clients.
23.3 The Supplier shall ensure that only properly qualified personnel is engaged to perform the site activities and attend at the Supplier’s cost site specific inductions, as requested by the Purchaser.
23.4 The Supplier shall procure and maintain Worker’s Compensation insurance and any other additional insurance policies as requested by the Purchaser and listed in the Purchase Order. The Supplier shall lodge certificates of currency with the Purchaser not later than 5 days before commencing the site activities for all of the insurance policies required under the Purchase Order. The Supplier shall ensure that the Purchaser is listed as an interested party under the Supplier’s public liability insurance policy.
23.5 In case the Supplier does not achieve completion of the site activities by the date for completion established by the Purchase Order, liquidated damages shall apply as defined in the Purchase Order. Should greater damages be incurred by the Purchaser, then such damages will recoverable from the Supplier as general damages.
23.6 The Supplier’s site work shall be subject to a minimum defect liability period of 12 months from completion of the project work under the contract between the Purchaser and its client.
23.7 The Supplier will submit monthly progress claims to the Purchaser. The Purchaser will effect payment of the approved progress claims no later than thirty (30) days from the first day of the month following the month of receipt of the progress claim.
24. Subcontract Agreement
In the event that the Purchaser and the Supplier have signed a Subcontract Agreement, then the Subcontract Agreement shall prevail over these General Conditions.