PURCHASE ORDER TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS FOR THE PROVISION OF GOODS AND/OR SERVICES
1. DEFINITIONS:
1.1 Unless otherwise required the following terms shall apply:
(a) “Company”: means Resource Services Group x Pty Ltd.
(b) “Supplier”: means the supplier of the Goods and/or Services.
(c ) “Agreement”: means the agreement between Company and Supplier comprising the Purchase Order, these general terms and conditions, and any special terms and conditions agreed and attached.
(d) “Goods”: means machinery, plant, equipment, apparatus, materials, articles, supplied or delivered by Supplier as required under the Purchase Order.
(e) “Price”: means the total price of the Goods and/or Services as outlined in the Purchase Order.
(f) “Purchase Order” means a legally binding document (that includes these terms and conditions) confirming the Company’s arrangements to purchase designated Goods and/or Services from Supplier – listing the date of order, describing the Goods and/ or Services, item numbers, price, quantity, and dates for delivery.
(g) “Revision”: has the meaning given in clause 3.3 to 3.5.
(h) “Services”: means installation or erection works, services and things of all kinds to be performed by Supplier as required by the Purchase Order.
(i) “Warranty Period” means the period of twelve (12) months from date of delivery (in respect of Goods) or twelve (12) months from the date of performance (in respect of Services).
2. AGREEMENT:
2.1. These general terms & conditions and the special terms and conditions (with the special terms and conditions ranking in priority to these general terms and conditions) apply to the Purchase Order and together comprise the Agreement and supersede all other Terms & Conditions of the Supplier.
2.2 The Purchase Order and attached documentation comprising the Agreement may contain a description of the Goods and/or Services to be supplied, applicable prices and delivery details and may contain special conditions.
2.2. In case of any conflict or ambiguity, the details entered into the Purchase Order (including any agreed attachments) and agreed special terms and conditions (if any) shall have precedence over these general terms and conditions.
2.3. 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 this Agreement will have no effect.
3. ACCEPTANCE:
3.1 Upon receipt of the Purchase Order, the Supplier shall check it for discrepancies. Supplier shall acknowledge the Purchase Order by signing and returning the Purchase Order to the Company within five (5) days of its receipt. In the absence of such acknowledgment, the Suppliers part performance of the supply shall constitute acceptance of the Purchase Order, and the Agreement.
3.2 The Purchase Order and these terms and conditions shall constitute the entire agreement between Supplier and Company with respect to the Goods and/or Services described in the Purchase Order and no representation or statements by any employee or agent not expressly stated herein shall be binding upon the Company.
3.3 The Company and the Supplier can at any time mutually agree, to amend or vary the terms and condition of the Purchase Order and this Agreement to allow for any changes they wish to make, through a written Revision.
3.4 A Revision shall be made through the issue of a replacement Purchase Order cross referring to these terms and conditions and having the same PO number as previously issued and entered into.
3.5 The changes shall not be agreed until the resulting cost and time impacts have been agreed between the parties and the replacement Purchase Order with the appropriate ‘revision number’ has been issued by the Company.
4. PERFORMANCE:
4.1 Supplier, at its expense, shall deliver the Goods and/or perform the Services using the mode of transport, on the date and at the place specified in the Purchase Order.
4.2 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 Purchase Order.
4.3 Goods will become the property of the Company upon receipt by the Supplier of payment in full for the Goods delivered.
4.4 Services must be performed in accordance with the time frames set out in the Purchase Order.
4.5 The Supplier shall be entitled to an extension of time and/or associated delay and disruption costs for any delay events experienced that are outside of its reasonable control, including any State-wide or National industrial disputes, and including typical force majeure events such as acts of God, war, riot, fire, storm or flood, if the Supplier:
(a) has notified the Company in writing within one (1) business day from the date of becoming aware of the delay event describing its details;
(b) has submitted within a further two (2) business days from the date of the notice above, its claim in writing for an extension of time, and/or delay and disruption costs.
4.6 If the Supplier otherwise fails to deliver the Goods by the designated date for final delivery of the Goods, or to provide the Services by the designated date for completion of the Services due to delay events which were within its reasonable control, liquidated damages equivalent to 1% of the Price each week or part thereof can be levied by the Company against the Supplier, until delivery or supply has been completed (in full).
5. TITLE AND RISK:
5.1 Title to and property in the Goods and/or Services passes to the Company on delivery. Goods shall be delivered unencumbered and free of any security interest.
5.1 Risk in the Goods and/or Services shall remain with the Supplier until payment in full.
6. PRICE & SECURITY:
6.1 Unless stated otherwise, the total Price for the Goods and/or Services is in Australian currency (excluding GST) and is fixed and firm and not otherwise subject to escalation during the term of this Agreement.
6.2 The Company cab elect to retain retentions to the amount (as a percentage of the Price) set out in the Purchase Order, as security for proper delivery or supply of the Goods and/or Services.
6.3 The retentions shall be returned on final delivery of the Goods, or the date of final completion of the Services less any offset. Interest is not payable on the retentions.
7. PAYMENT:
7.1 The Supplier must render a Tax Invoice to the Company in relation to its supply of the Goods and/or Services in accordance with the requirements set out in the Purchase Order and by default at the end of each month for deliveries or supplies completed during the period in which the Goods and/or Services are provided.
7.2 Once the invoice is approved by the Company, it will be paid within 20 days from the end of the month in which the invoice was submitted.
8. INSURANCE:
8.1 The Supplier shall, at its own cost, effect and maintain until the delivery of Goods or provision of Services is completed, adequate insurance which in relation to Goods shall include material loss or damage insurance to the full replacement value of the Goods, including adequate transit insurance, and in relation to Goods and/or Services:
(a) Workers Compensation/Employer’s Liability insurance as required by law and ensure that its sub-suppliers have similarly insured their employees;
(b) adequate Public & Product Liability insurance; and
(c ) Professional Indemnity insurance as reasonably required.
8.2 The Supplier shall provide certificates of currency for review and confirmation, on request.
9. WARRANTY:
9.1 Supplier warrants the Goods being supplied are of merchantable quality, fit for the specified purpose and free of defects.
9.2 Supplier shall (at the option of Company) either replace, repair and make good any Goods or parts of Goods supplied by it found to be defective during the Warranty Period.
9.3 Supplier warrants that the Services being supplied accord with good industry practice.
9.4 Supplier shall (at the option of Company) rectify or reperform Services it provides to the extent of any identified deficiency during the Warranty Period.
10. PATENTS & INTELLECTUAL PROPERTY:
10.1 Supplier warrants that Goods supplied under the Agreement other than Goods supplied in accordance with the technical plans or drawings provided to Supplier by Company do not infringe any patent, copyright, design or trademark (whether foreign or domestic).
10.2 Any intellectual property in any sketches, plans, drawings, designs, reports or documents prepared by the Supplier in providing its Services under the Agreement, will on creation vest in the Company. Any background intellectual property of the Supplier shall remain the property of the Supplier, and to the extent reasonably required shall be on-licenced to the Company on a royalty-free, non-exclusive basis for the purposes of the particular project for which the Services were originally required to be performed.
11. INSPECTION:
11.1 Company may at any time during the course of manufacture or otherwise inspect Goods to be supplied (subject to Company providing the Supplier with reasonable advance notice of such inspection).
11.2 Supplier shall be liable for all or any damage, loss or destruction to any Goods or property resulting from improper packaging or handling of the Goods by Supplier.
12. TEST CERTIFICATES:
12.1 If Test Certificates for Goods are required by the Agreement they will be sent to the Company upon completion of that testing.
13. ASSIGNMENT:
13.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, personal representatives, successors and assigns.
14. WAIVER & AMENDMENT:
14.1 Except as provided by law or equity or elsewhere in this Agreement, none of the provisions of this Agreement shall be varied or amended without the prior written consent of the parties.
15 TERMINATION BY COMPANY:
15.1 The Company may terminate the Purchase Order and this Agreement:
(a) as a result of a substantial breach of this Agreement by the Supplier;
(b) if, in the Company’s reasonable opinion, the Supplier is unable to perform its obligations under the Agreement due to an event of insolvency;
(c ) if the Head Contract to which the supply relates has been terminated,
by, if due to the scenario in clause 15.1(c ) with immediate effect issuing notice in writing to the Supplier, if due to the scenarios in clause 15.1(a) and (b) firstly, providing 10 business days written notice allowing the Supplier to remediate that position, and in the event remediation has not been achieved by the Supplier within the 10 business days, terminating the Agreement with immediate effect by issuing a final notice to that effect, in writing.
15.2 When the Supplier receives a final notice of termination from the Company under clause 15.1, the Supplier must:
(a) stop all work in relation to the Goods and/or Services;
(b) take such action as necessary or as the Company directs;
(c ) use reasonable endeavours to minimise the cost of demobilisation.
16. TERMINATION BY SUPPLIER:
16.1 The Supplier may terminate this Agreement:
(a) as a result of a substantial breach of this Agreement by the Company;
(b) if, in the Supplier’s reasonable opinion, the Company is unable to perform its obligations under the Agreement due to an event of insolvency,
by issuing a termination notice with immediate effect, in writing.
16.2 When the Company receives a termination notice from the Supplier under clause 16.1, the Company must pay:
(a) for all Goods delivered and/pr Services provided by the Supplier up to the date of termination, including payment for Goods ordered but not yet delivered;
(b) for the cancellation and break costs incurred by the Supplier in cancelling downstream orders for Goods and/or Services
(c ) the Suppliers demobilisation costs.
17. SUSPENSION:
17.1 The Company may suspend all or part of the supply of the Goods and/or Services at any time under this Agreement, for any period of time by notice in writing to the Supplier.
17.2 The Supplier must:
(a) comply with a notice issued pursuant to clause 17.1;
(b) cease all work in relation to the Goods and/or Services to the extent outlined in that notice;
(c ) use reasonable endeavours to minimise the costs of suspension.
17.3 The Supplier must recommence the supply of the Goods and/or Services when notified by Company. The Supplier can claim for the reasonable direct costs incurred due to the suspension, by submitting a written claim within two (2) business days from the date the suspension ceases, for determination by Company.
18. INDEMNITY:
18.1 Subject to clause 18.2, Supplier shall indemnify the Company for any personal injury, or death of any person or for any third party property damage it has caused as a consequence of any breach of this Agreement.
18.2 The Supplier’s liability to the Company under clause 18.1 shall be reduced proportionally to the extent that an act or omission of Company has contributed to that liability.
19. ACCESS TO SITES:
19.1 The Supplier shall be provided with access to the Company’s work premises and to project sites as required by the Supplier to deliver Goods and/or provide Services.
20. EXCLUSION OF CONSEQUENTIAL LOSS
20.1 Notwithstanding any other provision of the Purchase Order and this Agreement, neither party is liable for any loss of revenue, loss of business, loss of profit or loss of opportunity or loss of goodwill that is an indirect or consequential loss suffered or incurred by the Company, its subcontractors or any third party (“Exclusion of Consequential Loss”).
21. LAW & JURISDICTION:
21.1 The Purchase Order and this Agreement shall be construed in accordance with and be governed by the laws applicable in the State of New South Wales. Any legal action or proceedings with respect to obligations hereunder shall be brought in the State of New South Wales and each of the parties hereby submits to such jurisdiction.
22. NOTICE REQUIREMENTS:
22.1 Unless otherwise agreed, any notice (and other documents) required or permitted to be given or delivered under this Agreement shall be delivered via email addressed to the attention of the representative detailed in the Purchase Order.
22.2 Notice shall be deemed to have been received immediately at the time the email is sent.
23 MODERN SLAVERY:
23.1 Supplier represents, warrants and undertakes that, as at the date of the Purchase Order, neither Supplier, nor any entity within its supply chains (neither an officer, employee, agent, contractor, licensee, consultant, invitee, client or adviser of Supplier or a supply chain participant), to the best of its knowledge, has been convicted of a Modern Slavery offence.
23.2 Supplier must take reasonable steps to identify, assess and address risks of Modern Slavery practices in its operations and supply chains to the extent it may impact the Purchase Order and this Agreement.
23.3 If at any time Supplier becomes aware of practices in its operations and supply chains that comprise an alleged, suspected or actual Modern Slavery offence, Supplier must as soon as reasonably practicable take the action required to address or remove the offending practices, including where relevant by addressing any practices of other entities in its supply chains, and provide Company with a progress update.
23.4 Supplier must cooperate with Company in investigating the relevant circumstances of the alleged, suspected or actual Modern Slavery offence, and must if required by Company carry out within 20 Business Days the remedial actions required to rectify any Modern Slavery offence that has occurred and ensure measures are implemented to further minimise the risk of modern slavery within the Supplier supply chains.
23.5 If Supplier fails to undertake the required remedial action within the 20 Business Days notified under clause 23.4 above, Company may terminate the Purchase Order and this Agreement with immediate effect by giving written notice to Provider.