TERMS AND CONDITIONS FOR SERVICES AND ASSOCIATED GOODS
Brolga Developments & Construction Pty Ltd (ACN 102 847 709) (Purchaser) agrees to purchase the Services from the Supplier and the Supplier agrees to sell the Services to the Purchaser on these Terms and Conditions.
1.1 These Conditions together with the Purchase Order constitute a legally binding contract between the Purchaser and the Supplier and set out the terms and conditions of the purchase of the Services.
1.2 The Contract comes into existence on the issue of the Purchase Order, irrespective of whether the Supplier returns a signed copy of the Purchase Order to the Purchaser or expressly confirms its agreement of these Conditions.
1.3 To the extent the Supplier’s terms and conditions are supplied to the Purchaser, including with Goods or as printed on consignment notes or other documents (including quotations), those terms and conditions will be of no legal effect and will not constitute part of the Contract even if any of the Purchaser’s personnel signs those terms and conditions or annexes the terms and conditions to the Contract.
The Purchase Order prevails to the extent of any inconsistency with these Conditions.
3. THE SERVICES
3.1 The quantity, quality and description of the Services are as stated in the Purchase Order.
3.2 The Supplier must supply the Services in accordance with, and as specified in, the Contract.
4. TIME FOR PERFORMANCE
4.1 Time is of the essence in respect of all obligations of the Supplier under the Contract.
4.2 The Supplier must deliver any Goods to the Delivery Address by the Delivery Date.
4.3 The Supplier must supply the Services by the Commencement Date.
4.4 The Supplier must immediately report to the Purchaser any actual or likely delay in supply of the Services and its cause. The Supplier must take all reasonable steps to prevent delay.
5. PACKAGING OF GOODS
5.1 The Supplier must:
(a) suitably pack any Goods to avoid damage during loading, transit, delivery, unloading or storage;
(b) pack and transport any Goods in accordance with any applicable regulations and industry codes; and
(c) clearly mark all packages of Goods for delivery and the delivery documents for the Goods with the Contract number and any Purchase Order number and ensure that the delivery documents accompany the Goods to the Delivery Address.
6. TECHNICAL MATERIAL
The Supplier must, without additional cost to the Purchaser, supply all required plans, drawings, specifications, manuals, certificates, instructions, fabrication reports and the like in the form and at the times and in the numbers of copies specified in the Purchase Order or otherwise as reasonably required by the Purchaser.
7.1 In addition to its rights under clause 14, the Purchaser may cancel all or any part of the Purchase Order at any time for any reason, in its sole and absolute discretion by written notice of cancellation to the Supplier.
7.2 Upon receipt of notice of cancellation the Supplier must:
(a) immediately cease performance of the Services to the extent specified in the cancellation notice;
(b) immediately take all possible action to mitigate any costs incurred by it as a result of the cancellation; and
(c) provide the Purchaser with a detailed report in the form required by the Purchaser in relation to the Services supplied prior to cancellation.
7.3 In the event of cancellation by the Purchaser under this clause:
(a) the Supplier shall be entitled to payment for Services (not comprising Goods) supplied and Goods delivered to the Purchaser prior to cancellation but not already paid for;
(b) if Goods have been shipped, but not delivered, at the time of cancellation the Purchaser may either:
(i) accept those Goods when delivered, and pay the Price for them; or
(ii) return those Goods to the Supplier at the Purchaser’s expense;
(c) if Goods have been manufactured or fabricated in accordance with the Specification (but not shipped) at the time of cancellation, the Purchaser shall pay costs reasonably incurred by the Supplier prior to the date of the cancellation which is directly attributable to the placing of the Purchase Order and which the Supplier is not able to recoup in some other way;
(d) the Supplier is not entitled to the Price of Goods or to any compensation for that cancellation other than as specified in clauses
7.3(a) to 7.3(c);
(e) the maximum compensation payable under clause 7.3(a) to 7.3(c) airing out of the cancellation must not exceed the Price of the relevant Services cancelled; and
(f) the Supplier is not entitled to the Price or any other compensation arising out of the cancellation other than as specified in this clause.
8.1 The price for the Services is the price stated in the Purchase Order. Unless otherwise agreed and clearly stated in the Purchase Order, the price stated on the Purchase Order excludes GST but includes any other applicable taxes, customs, excise and import duties, tariffs, fees, levies, charges, costs or expenses incurred by the Supplier, including transport, packing and insurance costs.
8.2 Unless otherwise agreed and clearly stated in the Purchase Order the Price is fixed and firm and not subject to adjustment due to currency fluctuation or any other reason.
9.1 The Supplier shall claim payment for the supply of the Services by submitting to the Purchaser invoices in accordance with the Purchase Order. Each such invoice must:
(a) be a tax invoice;
(b )be correctly dated;
(c) refer to the Purchase Order;
(d) list the particular Services supplied; and
(e) be supported by relevant records to calculate and verify the amount set out in any Supplier invoice.
9.2 Compliance by the Supplier with clause 9.1 is a condition precedent to the Supplier’s entitlement to claim the amount stated in an invoice submitted by the Supplier to the Purchaser.
9.3 The Purchaser shall not be liable to pay for the Services until the Services have been supplied in accordance with, and as specified in, the Contract.
9.4 The Purchaser may, within 7 days of receiving a Supplier invoice, request by written notice that the Supplier provides the Purchaser with all additional relevant records to calculate and verify the amount set out in any Supplier invoice, by the time stated in the notice or, whether no time is specified, within 48 hours.
9.5 Subject to clause 9.2, the Purchaser shall pay the Supplier the amount claimed in an invoice within the time stated in the Purchase Order.
9.6 If the Purchaser disputes any amount claimed in an invoice, the Purchaser shall make a determination of the amount payable and provide a progress certificate to the Supplier:
(a) identifying the invoice to which the certificate relates;
(b) stating that determination, including, for each item of the invoice:
(i) the amount which is not disputed and therefore payable; and
(ii) if applicable, the amount which is disputed and the reason(s) it is disputed, within the time stated in the Purchase Order; and
(c) and pay the amounts not in dispute in accordance with clause 9.5.
9.7 Without limiting clause 9.6, the Purchaser may issue a revised progress certificate at any time correcting any omission or error discovered in any previous progress certificate or modifying any previous progress certificate issued by it, including as a result of the provision of information under clause 9.4.
9.8 The Purchaser may deduct from moneys due to the Supplier any debt or other monies which are due from the Supplier to the Purchaser, whether under the Contract or otherwise.
9.9 Payment to the Supplier is on account only and does not constitute approval of the Services or any other matter or thing in respect of which payment is made.
10.1 The Supplier must obtain all necessary permits and licenses which must be obtained in Supplier’s name and are necessary for Supplier to perform its obligations under the Contract.
10.2 The Supplier must arrange for delivery of Goods to the Delivery Address.
10.3 The Supplier must, in providing the Services (including delivering Goods):
(a) not interfere with the Purchaser’s activities or the activities of any third party at the Delivery Address or at the Site;
(b) comply with, and ensure that its Personnel comply with, all lawful directions and orders given by or on behalf of the Purchaser at the Delivery Address and/or at the Site.
11. TITLE AND RISK
11.1 Risk in Goods passes to the Purchaser upon delivery to the Delivery Address.
11.2 Property in Goods passes to the Purchaser upon delivery to the Delivery Address.
12.1 The Supplier represents and warrants that:
(a) the Services will be supplied in an efficient manner in accordance with all applicable laws, regulations, codes and standards, including, where applicable, the National Construction Code, the Building Code of Australia and the Australian Standards;
(b) the Services strictly comply with the Specifications;
(c) the Services are free from all Defects;
(d) the Supplier will, and will ensure its Personnel will, exercise the standards of diligence, due care and skill normally exercised by a prudent and similarly qualified and competent supplier supplying equivalent services;
(e) the Services are fit for the purpose for which services of the same kind are commonly supplied and for any other purpose described in the Purchase Order;
(f) all Personnel are appropriately qualified, competent and skilled to perform the relevant part of the Services in respect of which they are engaged;
(g) any equipment used on Site by the Supplier will be in a safe working condition and comply with all Legislative Requirements and be operated by suitably qualified and competent Personnel;
(h) all Goods match the description of the Goods in the Purchase Order;
(i) if the Supplier gave the Purchaser a sample of Goods before the Purchaser issued the Purchase Order, all Goods correspond with the sample;
(j) all Goods are of new and of merchantable quality; and
(k) all Goods are completely owned by the Supplier and will be supplied to the Purchaser free of any third party interests, liens, charges or encumbrances.
12.2 The Supplier must immediately rectify or replace at the Purchaser’s option and at Supplier’s sole cost any Defective Services discovered within 15 months after supply or 12 months after the Services are first used or enter into the service for which they are purchased, whichever occurs first.
12.3 If the Purchaser reasonably considers that it is necessary to immediately rectify or replace Defective Services then the Purchaser is not obliged to give the Supplier an opportunity to rectify or replace such Services before the Purchaser does so or causes a third party to do so. The Supplier must reimburse the Purchaser for the full cost of such replacement or rectification.
12.4 The Supplier’s obligation to replace or rectify Defective Services is cumulative of other remedies available to the Purchaser.
12.5 The Supplier must ensure that the Purchaser has the full benefit of any manufacturer’s warranties that may be applicable to the Services and the Supplier must pursue any manufacturer’s warranties on the Purchaser’s behalf if the Purchaser requests.
12.6 If the Supplier has replaced or rectified Defective Services, the rectified or replacement Services must be subject to the same warranty period as the original Services, from the date of rectification or replacement.
12.7 If the Purchaser elects to accept Defective Services, such election does not bind the Purchaser to accept any other Defective Services and does not affect any of the Purchaser’s other rights under the Contract in respect of those Replacement Services.
12.8 The Purchaser may assign any or all of the above warranties to any of its clients or related companies and the Supplier consents to such assignment.
13. LIABILITY AND INDEMNITY
13.1 The Supplier is liable for, indemnifies and will indemnify and keep the Purchaser indemnified against all Loss, and hereby releases and will release the Purchaser from any claim, action, suit, proceeding or demand arising directly or indirectly from
any breach of any warranty or obligation of the Supplier under the Contract, except to the extent caused or contributed to by any wrongful act or omission of the Purchaser.
13.2 The rights and obligations under clauses 12 and 13 survive termination of the Contract.
14. DEFAULT AND TERMINATION
14.1 The Contract may be terminated by the Purchaser immediately on giving written notice of termination to the Supplier if the Supplier:
(a) fails to remedy any breach of its obligations under the Contract within 7 days after receiving written notice from the Purchaser requiring it to do so;
(b)is unable to pay its debts when they fall due; (c) ceases to hold any licence, qualification, approval, authority or consent required to supply the Services;
(d) threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvent administration;
(e) enters into any negotiations for any arrangement or composition with its creditors;
(f) being a company, goes into liquidation, whether voluntary or compulsory, or has a receiver or receiver and manager or administrator appointed, or an application is made for the Supplier to be wound up;
(g) being an individual, has a trustee in bankruptcy appointed;
(h) ceases or threatens to cease to carry on business; or
(i) assigns or subcontracts the Contract or any part of the Supplier’s obligations under the Contract without the prior written consent of the Purchaser, in which case the Purchaser’s liability to the Supplier shall be limited to payment of the Price for Services supplied prior to such termination.
14.2 Termination of the Contract does not affect or prejudice any rights of the Purchaser which have accrued prior to the termination. The Purchaser’s exercise of its rights under this clause does not affect or limit its ability to exercise any other rights under the Contract, at law or in equity.
15.1 The Supplier must for as long as it has obligations outstanding in connection with the supply of the Services, effect and maintain:
(a) all insurances specified in the Purchase Order; and
(b) if no insurances are specified, appropriate insurance cover for all risks arising out of the performance of its obligations under the Contract.
15.2 The Supplier must provide evidence satisfactory to the Purchaser of such insurance to the Purchaser as a condition precedent to the Supplier being entitled to:
(a) access the Site;
(b) make a claim for payment for the supply of the Services; and
(c) payment for the supply of the Services.
The Purchaser may object to any Personnel who, in the Purchaser’s opinion, do not have the appropriate qualifications, competency or skill to perform the relevant part of the Services in respect of which they are engaged, or who engage in misconduct. The Supplier must remove and immediately replace such Personnel with a suitable replacement upon being directed to do so by the Purchaser.
17.1 This clause 17 applies to the extent the Supplier or Personnel are required to be on or in the vicinity of the Site.
17.2 The Supplier must:
(a) comply, and ensure its Personnel comply, with all Legislative Requirements and all policies, standards, rules and procedures in force from time to time, including in relation to HSE;
(b) submit and amend any HSE management plan(s) as reasonably required by the Purchaser;
(c) attend all induction courses as reasonably required by the Purchaser;
(d) permit the Purchaser to have access to the Supplier’s premises, documentation, data and Personnel as necessary to enable the Purchaser to verify, monitor and audit the Supplier’s compliance with this clause 17;
(e) give the Purchaser not less than 7 days prior written notice before commencing Services on the Site.
17.3 The Supplier acknowledges that it must not have exclusive possession of any part of the Site and must only be granted access to the Site to the extent necessary for the performance of the Services. The Supplier must cooperate with other
contractors and persons on the Site and coordinate its work with them.
18. INTELLECTUAL PROPERTY
18.1 The Supplier warrants that any design, equipment, methods of working and documentation including but not limited to specifications, drawings, reports and publications used or produced by the Supplier in connection with the Services must not
infringe any IP Right.
18.2 the Purchaser acknowledges that ownership of all IP Rights used or created under the Contract or in the provision of the Services is retained by the Supplier. The Supplier grants to the Purchaser a non- exclusive, transferable, royalty free,
irrevocable and perpetual licence to use such IP Rights for the purpose of the Purchaser having the benefit of the Services.
18.3 The Supplier indemnifies the Purchaser for all Loss and expense incurred as a result of a breach of this clause.
18.4 This clause 18 shall survive the cancellation, termination or repudiation of the Contract for any reason.
19. SECURITY OF PAYMENT
19.1 The Parties agree that for the purposes of any adjudication under the Construction Contracts Act
2004 (WA), in relation to the Contract or the
(a) the prescribed appointor shall be the Chairperson from time to time of the Chapter of Institute of Arbitrators and Mediators Australia (WA Chapter);
(b) the amount set out in a progress certificate given by the Purchaser under clause 9.6 is the amount of the ‘progress payment’ calculated in accordance with the terms of the Contract to which the Supplier is entitled; and
(c) the date under clause 9.1 on which the Supplier must claim payment is the ‘reference date’.
20.1 Entire Agreement: The Contract comprises the entire agreement between the Parties in respect of its subject matter and supersedes all prior agreements, quotation requests, understandings, representations, warranties, promises, statements, negotiations, letters and documents in respect of its subject matter.
20.2 Severance: If any provision of the Contract is determined to be void by any court then that determination does not affect any other provision of the Contract, which otherwise remains in full force and effect.
20.3 Waiver: No waiver by a Party of any breach of a provision of the Contract is a waiver of any subsequent breach of that provision or any other provision. A waiver is not effective unless it is in writing.
20.4 Variations: An amendment or variation to the Contract is not effective unless it is in writing and signed by the Parties.
20.5 Assignment: The Supplier must not assign the Contract or any part of the Supplier’s obligations under the Contract without the prior written consent of the Purchaser.
20.6 Subcontracting: The Supplier must not subcontract all or any of its obligations under the Contract without the prior written consent of the Purchaser.
20.7 Exclusion and apportionment: The extent not prohibited by law, Apportionment Legislation is excluded. The Supplier indemnifies the Purchaser against any claim, cost, expense or liability whatsoever arising out of or in connection with the
Contract, which are caused or contributed to by the Supplier’s Personnel and for which the Supplier would have been liable to the Purchaser but for, or which the Purchaser is not able to recover from the Supplier because of, any apportionment under
any Apportionment Legislation.
20.8 Governing Law: The Contract is governed by, and is to be interpreted in accordance with the laws in force in Western Australia and the Parties submit exclusively to that jurisdiction.
In these Conditions:
Apportionment Legislation means Part 1F of the Civil Liability Act 2002 (WA).
apportionment includes an apportionment of liability for damages, a limit on the amount of damages that may be awarded against a Party or a determination of or judgment for the proportion of any damages that should be borne by a Party.
Conditions means these terms and conditions of purchase including any additional special conditions stated in the Purchase Order, and any variations agreed by the Parties in writing.
Commencement Date means the date for performance of Services, as stated in the Purchase Order
Contract means the Purchase Order and the Conditions.
Defect means any aspect of the Services not in accordance with this Contract, or which is damaged, deficient, faulty, inadequate or incomplete in design, performance, workmanship, quality or makeup and Defective has an equivalent meaning.
Delivery Address means the address for delivery stated in the Purchase Order.
Delivery Date means the date for delivery of Goods, as stated in the Purchase Order.
Goods means the goods specified in the Purchase Order including, without limitation, manuals, operating instructions, reports and drawings.
IP Rights means all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trademarks, circuit layout designs and rights in relation to circuit layouts, but excludes non- assignable moral rights and similar non-assignable personal rights of authors and producers.
Legislative Requirements means any applicable statutes, regulations, by-laws, orders, awards, proclamations of the Commonwealth, certificates, licenses, consents, permits, approvals, codes, the Australia Standards, standards and requirements of organisations.
Loss means any loss, damage, expense, payment or liability, whether direct or indirect, and includes consequential loss, damage or expense (including but not limited to loss of profit or revenue, loss of market or loss of contracts or damage to commercial reputation).
Party means the Purchaser or the Supplier, and a reference to Parties is a reference to both of them.
Personnel means any person, consultant or subcontractor engaged by the Supplier to provide all or any part of the Services on behalf of the Supplier.
Price has the meaning given in clause 8.1.
Purchase Order means the written order signed by or on behalf of the Purchaser and accepted by the Supplier for the supply of the Services.
Services means the services specified in the Purchase Order and includes any associated Goods.
Site means the premises specified in the Purchase Order.
Specification means all codes, standards, drawings and specifications applicable to the Purchase Order, referred to in the Purchase Order or otherwise incorporated into the Purchase Order by reference and to be complied with by the Supplier.
Supplier means the supplier of the Services specified in the Purchase Order.