1.1 The following definitions shall be used for the purpose of interpreting the Agreement and these Agreement terms and conditions:
a) “Company”: means the entity so named in the Agreement together with its related parties as defined in the Corporations Act 2001 and including its duly appointed representatives nominated from time to time.
b) “Supplier”: means the person (including an individual, firm or corporate entity) so named in the Agreement who is bound to supply and deliver the Goods,
c) “Agreement”: has the meaning given in Clause 2 and it is an Agreement between Company and Supplier comprised of the Agreement Form, these Agreement terms and conditions, any special conditions and attachments. The Agreement supersedes all previous communications and negotiations and shall be acknowledged by Company as sole authority for charging Goods to its account.
d) “Revision”: has the meaning given in Clause 5.
e) “Goods”: means machinery, plant, equipment, apparatus, materials, articles, erection works, services and things of all kinds to be supplied, delivered or performed by Supplier in accordance with the Agreement.
2.1. These Terms & Conditions and the Special Conditions (which rank in priority to these Terms and Conditions) apply to the Purchase Order and supersede all Terms & Conditions of the Supplier.
2.2. The Agreement may contain a description of Goods and/or Services, applicable prices and delivery details and may contain special conditions (if any) in a separate section. The Agreement may also include attachments (if any) referenced therein.
2.3. In case of any conflict or ambiguity, the Agreement Form(including any attachments) and special conditions (if any) shall have precedence over these standard terms and conditions.
2.4. Any reference by the Supplier to Supplier’s own or any other terms and conditions in its quotation or other documentation presented by it in connection with the Agreement will have no effect on the Agreement.
2.5. The Agreement shall be effective from the date of issue as stated in the Agreement.
2.6. Any goods supplied or services rendered prior to the date of the Agreement will be covered by the terms and conditions of the Agreement.
3.1 Upon receipt of the Agreement, the Supplier shall check it for discrepancies. Supplier shall acknowledge the Agreement by signing and returning the Agreement to Company within five (5) days of receipt of Agreement. In the absence of such acknowledgment, the performance of the Agreement by Supplier shall constitute acceptance of the Agreement.
3.2 The Agreement shall constitute the entire agreement between Supplier and Company with respect to the Goods and/or Services and no representation or statements by any employee or agent not expressly stated in the Agreement shall be binding upon the Company.
4.1 Supplier, at its expense, shall deliver the Goods and/or Services using the mode, on the date and at the place specified in the Agreement in which any required advance notification of delivery may be indicated.
4.2 Unless otherwise specified in the Agreement, the Goods must be delivered, adequately packaged and protected to ensure safe delivery, to the delivery point and by the delivery date(s) specified in the Agreement Form
4.3 The Goods will become the property of the Company upon delivery of the Goods to the Company, as evidenced by the signature on the delivery docket of a duly authorised representative of the Company. Such signature is not, and will not be deemed to be, an acknowledgement of the acceptability of the Goods. Notwithstanding that the Company has taken delivery of the Goods, the Supplier will remain responsible for any loss or damage to the Goods, which may have occurred prior to delivery, and for any non-compliance of the Goods with the requirements of the Agreement form.
4.4 The Supplier must take all reasonable steps to minimise or prevent any delay in the performance of the Services or the delivery of the Goods. The Company may grant an extension of time to the nominated delivery date provided or in the performance of the Services provided:
(a) The delay is caused by any reason completely beyond the control of the Supplier, including any State-wide or National industrial disputes, acts of God, war, riot, fire, storm or flood.
(b) The Supplier has notified the Company in writing within two (2)days of the delay occurring (or such other time as may be specified in the Agreement)of its claim for an extension of time. The Company shall not be liable for any extension of time claim that is not lodged in writing with the Company within two(2) days of the delay occurring.
4.5 If the Supplier fails to perform the Services in a timely fashion or fails to deliver the Goods by the specified delivery date(s), the Company may terminate the Agreement either in whole or in part for default, and/or deduct from monies due to the Supplier as liquidated damages, representing a genuine pre-estimate of the Company’s damages and not as a penalty, in the amount of 2% for each week or part thereof in which the non-performance continues or delivery exceeds the specified delivery date, with a cap of 10% of the Agreement Price.
4.6 Supplier shall not be entitled to and hereby waives any and all claims to increased compensation for/or damages which it may suffer from any such unforeseeable causes
5.1 The Company reserves the right at any time in relation to the Goods to make a Revision to the Agreement to correct any errors or omissions therein or to make any changes including in respect of specifications, quantity and delivery.
5.2 A Revision shall be made through the issue of an electronic document titled “Agreement” having the same Agreement number as the previously executed Agreement.
5.3 The Supplier must not make such corrections or changes until the resulting cost and time impacts have been agreed between the parties and the proper Agreement document with the appropriate ‘revision number’ has been authorised and issued by the Company and acknowledged and accepted by the Supplier. Thereafter the Supplier agrees to take immediate and necessary action to comply with such Revision to the Agreement.
6. TITLE AND RISK:
6.1 Title to and property in the Goods and/or Services shall pass to Company on the first to occur of payment of any part of the Agreement price or delivery to the place specified in the Agreement. Such Goods and/or Services yet to be delivered by Supplier shall be appropriately marked and identified as the property of Company.
6.2 Risk in the Goods and/or Services shall remain with Supplier until the time Company takes delivery of the Goods and/or Services unless otherwise expressly stated in the Agreement. Any loss or damage to Goods howsoever caused when under Supplier’s risk shall at its own cost be rectified by Supplier and thereafter when the risk in the Goods has transferred to Company, Supplier shall be liable for any loss or damage to such Goods to the extent caused by its negligence, willful act, misconduct, fault, breach of duty(statutory or otherwise) or breach of the Agreement.
7.1 Unless otherwise stated, the total Agreement price as indicated in the Agreement is in Australian currency excluding GST and is fixed and firm, not subject to escalation for the duration of the Agreement; and includes all packing, testing and documentation costs.
7.2 The Purchaser is not obligated to fulfill the estimated value of the PO. The Supplier has no entitlement to the entire value of the PO. Requested services / goods are wholly limited to the value agreed and stated in the PO.
8.1 The Supplier must, unless otherwise agreed with the Company, render a Tax Invoice to the Company in relation to the provision of the Goods and/or Services at the end of each month during the period in which the Goods and/or Services are provided. The invoice must contain precise details of the services and goods provided and calculated by reference to the prices, fees or other amounts specified in the Purchase Order and be accompanied by supporting documentation where relevant.
8.2 Once the invoice is approved by the Company, it will be paid within 30 days from the end of the month on which the invoice is submitted.
9.1 Supplier shall, at its cost, effect and maintain until the risk in the Goods passes to Company adequate material loss or damage insurance at least to the full replacement value of the Goods including adequate transit insurance and also covering unloading if Supplier is required to unload the Goods. Such insurance shall cover the parties’ respective rights and if required by Company shall be in the joint names of the parties.
9.2 Supplier shall carry: (i) Workers Compensation/Employer’s Liability required by law with where legally permitted an indemnity for Company(including its client as applicable) and ensure that its sub-suppliers have similarly insured its employees; (ii) adequate public & product liability insurance and (iii) any other insurance as required. The Supplier must provide the required certificates of competency to the Company prior to commencement of the works. This Agreement will not come into effect unless the required insurances have been provided to the Company by the Supplier.
10.1 Supplier shall ensure that all drawings and data used have been certified for construction and that Goods are manufactured according to such drawings and data or any subsequent revisions thereof.
11.1 Supplier warrants that the Goods supplied shall be of merchantable quality, fit for the purpose intended and free of defects in materials, workmanship and design. If Company supplies manufacturing drawings to Supplier, Supplier warrants that the Goods are manufactured and supplied strictly in accordance with such drawings.
11.2 Supplier shall (at the option of Company) either replace or repair and make good any Goods or parts of Goods supplied by it found to be defective or in any way unsuitable for the purpose intended for a period of twelve (12) months from date of delivery of the Goods (“Warranty Period”). If Supplier repairs or replaces Goods during the Warranty Period, then those Goods repaired or replaced have a further warranty for a period of twelve (12) months from the date such repairs or replacements were completed.
12. PATENTS & INTELLECTUAL PROPERTY:
12.1 Supplier warrants that Goods supplied other than Goods supplied in accordance with technical plans or drawings provided to Supplier by Company do not infringe any patent, copyright, design or trademark (whether foreign or domestic) which any person may in any way be entitled to and shall save harmless and indemnify Company from and against all claims and proceedings for or on account of such infringements in respect of Goods supplied by Supplier and from and against all related claims, demands, proceedings, damages, costs, charges and expenses.
12.2 Any intellectual property in any sketches, plans, drawings, designs, reports or documents prepared by the Supplier in the provision of the Services under the Agreement, will upon its creation vest in the Company. Any intellectual property owned by the Supplier prior to the execution of the Services under the Agreement will remain the property of the Supplier, although such intellectual property may be used by the Company pursuant to a royalty-free license whilst the Services are being performed.
13.1 Company may at any time during the course of manufacture or otherwise inspect Goods to be supplied (subject to Company first giving Supplier reasonable notice of such inspection). Inspection by Company shall neither relieve Supplier of its obligations under the Agreement or otherwise nor waive Company’s rights or remedies provided under the Agreement or otherwise.
14.1 Supplier shall be liable for all or any damage, loss or destruction to any Goods or property resulting from improper packaging or handling by Supplier.
15. TEST CERTIFICATES:
15.1 If Test Certificates for Goods are required by the Agreement those must be forwarded to Company upon completion of testing.
16. ERECTION WORK & SERVICES:
16.1 When erection work and services on an external site (“Works”)away from Supplier’s workshops or premises form part of the Agreement, the following provisions shall apply:
a) all invoices shall be accompanied by a schedule certified by Company of the Works completed.
b) Progress payments shall not be made unless so stated in the Agreement.
c) Supplier shall obtain within ten (10) days of receipt of the Agreement and keep in effect during the currency of the Agreement such insurance as necessary to adequately protect Supplier and Company in respect of liability under law and shall lodge certificates of currency with Company.
17. SUB-AGREEMENTS &ASSIGNMENT:
17.1 Supplier shall ensure that any sub-purchase or sub-supply agreements relating to this Agreement contain the same terms and conditions as contained in the Agreement.
17.2 The Agreement shall be binding upon and inure to the benefit of the parties hereto and (unless such interpretation shall be repugnant to the sense or context) their respective executors, administrators, personal representatives, successors and assigns but shall not be assignable by Supplier without the consent of Company.
18. WAIVER & AMENDMENT:
18.1 Neither a waiver of any provision of the Agreement nor consent to any departure therefrom shall be effective unless given in writing by Company.
18.2 Except as provided by law or equity or elsewhere in the Agreement, none of the provisions of the Agreement shall be varied or amended without the prior written consent of the parties.
19.1 Company may at its option cancel the Agreement or any part thereof at any time. Company’s liability will be to pay for materials manufactured and supplied in accordance with the Agreement up to the date of cancellation and for costs of materials and other items ordered in connection with the Goods for which Supplier is legally bound to pay. Upon such payment, title to and property in all those materials and other items shall pass to Company.
20.1 If Supplier fails to make delivery; fails to perform with in the time specified in the Agreement; delivers non-conforming Goods and/or Services; fails to make progress so as to endanger performance of the Agreement; then the Company may cancel the Agreement or part thereof and Supplier shall be liable for all costs incurred by Company in purchasing similar Goods elsewhere.
20.2 If, in the opinion of the Company, the Supplier is unable to effectively perform its obligations under the Agreement due to insolvency, bankruptcy or related reasons, the Company will be entitled to terminate the Agreement.
21.1 The Company may suspend all or part of the supply of the Goods and/or Services at any time for any period of time by notice in writing to the Supplier. The Supplier must comply with the notice and recommence supply when notified by the Company. The Supplier will not be entitled to any additional payment arising as a result of the suspension.
22.1 Insofar as this Clause 22 applies to property, it applies to property other than the Goods.
22.2 Supplier shall be solely responsible for and shall indemnify and hold Company harmless against all claims, liens, demands, proceedings, judgements, fines, penalties, costs (including legal costs),losses, liabilities and other expenses whatsoever for any personal injury, including death and disease or loss of or damage to any property (including Company’s personnel and property) arising directly or indirectly out of or as a consequence of the performance of the Agreement or by failure of Supplier to perform any of its obligations under or to comply with requirements of the Agreement irrespective of sole or contributory negligence, misconduct, fault or breach of duty (whether statutory or otherwise) on the part of the Company.
22.3 However, in circumstances where Supplier is performing Works(as defined in Clause 16), Supplier’s liability to the Company under the foregoing paragraph that arise as a direct result of such Works shall be reduced proportionally to the extent that an act or omission of Company may have contributed to the injury, death, loss or damage.
22.4 The provisions of Part 1 F of the Civil Liability Act 2002 (NSW)are excluded from operation with respect to any matter arising out of or in connection with this Agreement.
23.1 Company shall be granted access to any and all parts of Supplier’s work premises and those of its sub-suppliers. Supplier shall expedite all Goods ordered through sub-Agreements on a regular basis and visit sub-supplier’s facilities or premises when necessary.
24 CONSEQUENTIAL LOSS:
24.1 Neither Company nor Supplier shall be liable to the other for any consequential loss including but not limited to loss of contract, business opportunity, profit or anticipated profit (or any loss of a similar nature)sustained by the other party.
25 APPLICABLE LAW:
25.1 The Agreement and the rights and obligations of the parties hereto shall be construed in accordance with and be governed by the laws applicable in the State of New South Wales. Each of the parties hereto hereby agrees that any legal action or proceedings with respect to its obligations hereunder shall be brought in the State of New South Wales and each of the parties hereto hereby submits to such jurisdiction.
26.1 The Company will retain monies from the Supplier, to the amount specified in the Agreement form, as security for proper delivery of the Goods. The amount held as security will be a percentage of the total Agreement Price.
26.2 The Company will release the retained monies less any proper deductions or set-off, as follows:
a) One half on commencement of the Company’s Practical Completion of the Works; and
b) The balance on the expiration of the last Defects Liability.
26.3 The Company is not obliged to pay the Supplier any interest on any amount held as Security.
27 SERVICE OF NOTICE:
27.1 Unless otherwise agreed to by the parties, any notice (and other documents) required or permitted to be given or delivered under this Agreement shall be delivered and addressed to the party at the addresses set forth in the Agreement. Notice shall be deemed to have been received by any party, and shall be effective: (a) on the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission (including any attached scanned documents), receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices; or (b) on the third day after which such notice is deposited, if mailed by certified or prepaid post.