Terms of service

GENERAL CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

1. INTRODUCTION
1.1. General
1.1.1. These Conditions apply to the supply of the Goods and the
Services.
1.1.2. These Conditions are the terms and conditions upon which
the parties:
1.1.2.1. contract for the purchase of Goods; and
1.1.2.2. contract for the supply of Services.
1.2. Interpretation
In these Conditions, unless a contrary intention is apparent:
1.2.1. "the Purchase Order" means -
1.2.1.1. where these Conditions are printed on the reverse of a
purchase order, that purchase order;
1.2.1.2. where these Conditions are printed on the reverse of a
request for quote, any purchase order subsequently issued
for supply of the goods or services that are the subject of the
quote.
1.2.2. "these Conditions" means these Conditions for Supply of
Goods and Services;
1.2.3. “Contract” means the contract between the Purchaser and
the Supplier constituted by the Purchase Order and these
Conditions;
1.2.4. “the Purchaser” means the Purchaser referred to on the front
of the Purchase Order;
1.2.5. "the Purchaser’s requirements" means those requirements of
the Purchaser to be met by the supply of the Goods or the
Services, as advised by the Purchaser to the Supplier prior
to the date of the Purchase Order;
1.2.6. "the Goods" means the goods referred to on the front of the
Purchase Order;
1.2.7. “Contract Material” means those documents and materials
created or required to be created under the Contract and to
be handed over to the Purchaser;
1.2.8. "Intellectual Property Rights" means:
1.2.8.1. patents, trademarks, service marks, rights in designs,
tradenames, copyrights and topography rights, in each case
whether registered or not and any similar or like right
including rights to trade secrets, know how, proprietary or
confidential information;
1.2.8.2. applications for registration of any of them;
1.2.8.3. rights under licences and consents in relation to any of them;
and
1.2.8.4. all forms of protection of a similar nature or having equivalent
or similar effect to any of them which may subsist anywhere
in the world;
1.2.9. “Liability” means all liabilities, damages, remedies, losses,
penalties, fines, costs, expenses (including legal fees and
expenses on a full indemnity basis), demands, claims and
proceedings of any nature;
1.2.10. “Personnel” means any employee, agent or subcontractor;
1.2.11. "the Price" means the price the Purchaser agrees to pay for
the Goods or Services (includes all taxes, duties, charges,
levies and fees payable (except GST)); 1.2.12. "the Services" means those services agreed to be supplied
to the Purchaser by the Supplier and referred to on the front
of the Purchase Order, and any other Services expressly or
impliedly agreed to be supplied to the Purchaser by the
Supplier;
1.2.13. "the Supplier" means the supplier referred to on the front of
the Purchase Order;
1.2.14. references to natural persons include corporations and vice
versa; and
1.2.15. the plural includes the singular and vice versa.
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2. CONDITIONS FOR SUPPLY OF GOODS TO THE
PURCHASER
2.1. Sale, Delivery and Installation
Unless otherwise agreed, the Supplier shall:
2.1.1. sell the Goods to the Purchaser free of encumbrances,
2.1.2. deliver the Goods to the Purchaser within such time as is
agreed within the Purchase Order;
2.1.3. unload the Goods;
2.1.4. install the Goods in accordance with, without limitation, the
Conditions for the Supply of Services to the Purchaser;
2.2. Acceptance
2.2.1. The Purchaser may test the Goods as it sees fit after the
Goods have been delivered and installed in accordance with
the Contract.
2.2.2. The Purchaser must accept the Goods immediately that it is
satisfied that the Goods comply with the Contract, are fully
functional and meet the Purchaser's requirements.
2.3. Price, Title and Risk
2.3.1. Payment terms
If the Purchaser accepts the Goods the Purchaser will pay
the price for the Goods within fourteen (14) days from the
date the invoice is dated.
2.3.2. Title and Risk
Title to and risk in the Goods will pass to the Purchaser on
the earlier of acceptance of the Goods or the Purchaser
making payment in full for the Goods.
2.4. Warranties
The Supplier warrants that:
2.4.1. the Goods will:
2.4.1.1. unless otherwise agreed with the Purchaser prior to the date
of the Purchase Order, be new on delivery to the Purchaser;
2.4.1.2. conform with any description applied to the Goods and any
sample of them provided by the Supplier prior to the date of
the Purchase Order;
2.4.1.3. meet the Purchaser's requirements, and be fit for the
purpose of those requirements and for the purpose for which
Goods of the same kind are commonly supplied;
2.4.1.4. be of merchantable quality and be free of any defects in
materials, workmanship or installation;
2.4.1.5. conform to any legally applicable standards, relevant
legislation, appropriate Australian Standards and good
construction industry practice; and
2.4.1.6. be of merchantable quality.
2.4.2. Services supplied in connection with the Goods will be
provided with all due care and skill; and
2.4.3. the Goods and any Services provided in connection with the
Goods, do not and will not infringe the Intellectual Property
Rights of any person.
2.5. Defects
Unless otherwise agreed in writing by the Purchaser, the
Supplier must remedy any defect arising in the Goods for a
period of twelve (12) months from the date on which the
Goods are accepted, without charge to the Purchaser. The
Supplier may repair or replace the Goods in order to comply
with this requirement.
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3. CONDITIONS FOR THE SUPPLY OF SERVICES TO THE
PURCHASER
3.1. The Supplier must supply the Services in all respects in
accordance with the Purchaser's requirements.
3.2. All Services supplied must be in compliance with all relevant
legislation, appropriate Australian Standards and good
construction industry practice.
3.3. If the Purchaser is satisfied the Supplier has provided the
Services in accordance with the Contract, the Purchaser will
pay the price for the Services within fourteen (14) days from
the date on which the Supplier's invoice is dated.
3.4. The Supplier warrants that the Services will be supplied with
all due care and skill and in such manner as meets the
Purchaser's requirements and will not infringe the Intellectual
Property Rights of any person.
3.5. If the Supplier breaches the warranty referred to in clause
2.4, the Purchaser may at its option and without prejudice to
any of its other rights arising from that breach:
3.5.1. require the Supplier to remedy the breach, including by re-
supply of the Services; or
3.5.2. terminate the Contract immediately by notice in writing.
3.6. The Supplier must complete provision of the Services by the
date agreed with the Purchaser as the date for completion of
the Services. If no date has been agreed, then the Supplier
must complete provision of the Services within a reasonable
time of the date of the Purchase Order.
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4. GENERAL
4.1. Price Variation
The Price will not be subject to variation unless it is stated to
be so on the front of the Purchase Order, or on any quote in
pursuance of which the Purchase Order is placed, and a
variation formula is set out on the front of the Purchase
Order or on the quote. If the Price is subject to variation, and
the Supplier claims an amount is due by reason of an event
contemplated by the variation formula, then the onus is on
the Supplier to satisfy the Purchaser that its entitlement to
rely on the variation formula has arisen. In particular, the
Supplier must:
4.1.1. claim the amount of the variation as soon as practicable;
and
4.1.2. provide all and any information required by the Purchaser to
verify the Supplier's entitlement to the payment of any
additional amount by reason of the variation.
4.2. Inclusions
The Price includes all taxes, duties, charges, levies and like
expenses payable (except GST). The Supplier must bear all
customs and import duties (including anti dumping duties)
levied.
4.3. No Sub-contracting The Supplier may sub-contract the performance of any
matter or thing required by the Contract with the prior written
consent of the Purchaser.
4.4. Assignment
4.4.1. The Purchaser must not directly or indirectly transfer or
assign the Contract, or any part share or interest in it without
the prior written approval of the Supplier.
4.4.1.1. The Supplier may at any time, without having to obtain the
Purchaser’s consent, assign any or all of its right, title and
interest as the Supplier under the Contract to any related
body corporate without cost or penalty.
4.5. Work Health and Safety
4.5.1. The Supplier shall have in place and maintain, a safe system
of work for the provision of the goods and services and have
and maintain all certificates, licences and approvals required
by law, Australian Standards or Codes of Practice specified,
under the Work Health and Safety Act 2012 (Cth).
4.5.2. The Supplier shall promptly report to the Purchaser, in
writing, details of any accident that occurs to the Supplier or
the Supplier’s staff or the Purchaser’s staff whilst the
Supplier is performing the services at the Purchaser’s site.
4.6. Environmental Obligations
The Supplier must, in carrying out its obligations under the
Contract, comply with all applicable environmental laws and
perform its obligations in an environmentally sensitive
manner that does not degrade the quality of the
environment.
4.7. Governing Law
The law of South Australia applies to the Contract.
4.8. Breach
4.8.1. If the Supplier breaches the Contract, or if it advises the
Purchaser that it is not or will not be able to perform all of its
obligations under the Contract, then subject to any other
provision of the Contract, and without limiting any other right
or remedy the Purchaser may have arising from such breach
or advice, the Purchaser may:
4.8.1.1. terminate the Contract by writing to the Supplier; or
4.8.1.2. acquire the Goods or Services (or the nearest reasonably
available substitute for the Goods or Services) from a third
party.
4.9. Indemnities and Insurance
4.9.1. The Supplier indemnifies the Purchaser from and against all
Liabilities suffered or incurred by the Purchaser due to any
loss of or damage to any real or personal property, or injury
to or death of any person, or, to the extent permitted by law,
under any work health and safety laws or environmental
laws, or infringement of any Intellectual Property Rights that
arise out of or as a consequence of:
4.9.1.1. any negligent act or omission or wilful misconduct of the
Supplier, its employees, agents or sub-contractors;
4.9.1.2. any breach of the Contract (including any breach of
warranty); or
4.9.1.3. any defect in the Goods or the Services.
4.9.2. Except in respect of injury to or death of any person (for
which no limit applies), the aggregate liability of the Supplier
to the Purchaser under the indemnity in clause 4.9.1 is
limited to value of the purchase order. 4.9.3. The Supplier must effect and maintain public liability,
workers compensation and professional indemnity insurance
against the risks referred to in this clause 4.99 and provide
evidence to the Purchaser of the currency of such insurance
upon request by the Purchaser.
4.10. Dispute Resolution
If a dispute arises between any two or more parties, and the
parties are unable to resolve that dispute, then before any
party takes legal or arbitration proceedings in respect of the
dispute (other than proceedings for urgent injunctive or like
relief), officers of the parties in dispute must report the
nature of the dispute to their respective Authorised
Representatives, and allow a period of fourteen (14) days for
further negotiation before legal or arbitration proceedings are
commenced.
4.11. Mediation
Subject to clause 4.10, disputes that are not settled by the
parties by negotiation may be referred to mediation,
provided that:
4.11.1. The mediator shall be a person nominated by the President
of the Resolution Institute (South Australian Chapter);
4.11.2. The parties may be legally represented; and
4.11.3. The place of mediation shall be Adelaide, South Australia.
4.12. Notices
4.12.1. Notices required or permitted to be given under the Contract
must be sent in writing by ordinary prepaid post to the
address of the intended recipient set out on the front of the
Purchase Order.
4.12.2. Notices given in accordance with this clause will be deemed
given when in the ordinary course of post such notice should
have been delivered.
4.13. Goods and Services Tax
4.13.1. The Price (and any other amounts payable for services
under the Contract) is fixed and exclusive of any goods and
services tax (or other similar tax or impost) payable. The
Purchaser must pay to the Supplier goods and services tax
in addition to the Price in respect of the Contract.
4.13.2. The Supplier must be registered and must provide their
Australian Business Number and tax invoices promptly in
accordance with A New Tax System (Goods and Services
Tax) Act 1999 (Cth).