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1.1 Subject to clause 1.2, the Purchase Order and these Conditions (collectively the Purchase Order Agreement) constitute the entire agreement between the party referred to as the supplier in the Purchase Order (Vendor) and the party engaging the Vendor for the supply of the goods or services specified in the Purchase Order (Company). In the event of any conflict between the Purchase Order and these Conditions, the Purchase Order will take precedence.
1.2 If the Vendor has received a consulting agreement, minor works agreement, supply and install agreement or any other form of contract from the Company in relation to the supply of goods or the performance of services as specified in the Purchase Order (Other Agreement), then the Other Agreement prevails and constitutes the entire agreement between the Company and the Vendor for the supply of goods or the performance of services specified in the Purchase Order. This Purchase Order Agreement may not be varied except in writing signed by the Company and the Vendor. Any variation will only be applicable to the specific Purchase Order for which the terms and conditions are varied and will not apply to past or future Purchase Orders nor oblige the Company to agree to such a variation for any other Purchase Order.
1.3 To the extent the Vendor’s terms and conditions are supplied with goods or services (including as printed on consignment notes or other documents), those terms and conditions will be of no legal effect and will not constitute part of the Purchase Order (even if any representative of the Company signs those terms and conditions or annexes the terms and conditions to the Purchase Order).
1.4 These Conditions apply only to the extent that they are relevant to the supply of the goods or services listed in the Purchase Order.
2.1 The Vendor warrants and represents that it is duly incorporated and has obtained all necessary approvals to execute and perform its obligations under this Purchase Order Agreement.
2.2 If the Vendor is contracting in the capacity of a trustee of a trust, then the Vendor warrants and represents to the Company that:
(a) it is duly and validly appointed as trustee for the trust;
(b) it has the lawful authority to enter into this Purchase Order Agreement for and on behalf of the trust; and
(c) it has a right of indemnity over the trust assets in respect of meeting any expense or debt incurred by the Vendor in connection with this Purchase Order Agreement.
2.3 In all cases the Vendor warrants and represents that all goods or services are to be of first class workmanship, of merchantable quality and fit for the purpose as represented by the Vendor to the Company or the purpose which could reasonably be inferred by a professional supplying the goods or services must be performed by appropriately qualified, competent, skilled, experienced and professional personnel and must be rendered with the degree of skill, care and diligence expected of a competent professional with experience in carrying out similar services. The goods or services must comply with any applicable legislation and relevant standard of the Standards Association of Australia, and must be supplied with copies of all material safety data sheets for dangerous goods.
2.4 Without limiting clause 4 and unless otherwise specified, the Vendor warrants and represents that the goods are properly and safely packed and delivered to, or the services are performed at, the place and within the time period specified in the Purchase Order.
2.5 The Vendor warrants and represents that it has complete ownership of the goods free of any liens, charges and encumbrances and the Company will be entitled to clear, complete and quiet possession of the goods.
2.6 The Vendor warrants and represents that any of the goods or services supplied under this Purchase Order Agreement and the use or enjoyment of those goods or services does not and will not infringe any Intellectual Property Rights or confidentiality of any person or entity.
2.7 The representations and warranties under this clause 2 are made on a continuing basis and remain unaffected notwithstanding suspension, termination or expiry of this Purchase Order Agreement unless otherwise agreed by the Company in writing.
3.1 The Vendor must ensure that the Company has a reasonable time after delivery to inspect the goods and reserves the right to inspect any goods before dispatch from the Vendor’s premises (or other location as notified by the Vendor to the Company in writing). The Company may inspect or witness tests on the goods or services or their results at any time. Where the Vendor is providing professional services, the Vendor must keep and maintain accurate and reasonably detailed books and records in connection with the performance of the Vendor will permit the Company to audit and examine any books and records at any time. The Company’s acknowledgement of receipt, inspection or payment for goods or services does not relieve the Vendor of any responsibility or liability (including any express or implied warranties or guarantees) and does not constitute acceptance by the Company.
3.2 Without limiting any other rights or remedies it may have, the Company may (as applicable):
(a) reject any defective goods or services by written notice;
(b) require the Vendor to repair, resupply or make good the defective goods or services;
(c) itself repair, make good or resupply the defective goods or services at the cost of the Vendor; or
(d) appoint a third party to repair, make good or resupply the defective goods or services at the cost of the Vendor.
3.3 The Vendor must:
(a) where the Company makes a decision to reject defective goods or services under clause 3.2(a), provide a full refund of any purchase price paid in respect to any rejected goods or services and the Company may procure such goods or services elsewhere; and
(b) where the Company makes a decision to require the repair, resupply or making good of defective goods or services under clause 3.2(b), repair, resupply or make good the defective goods or services at its own cost.
3.4 If the Company elects in writing, the costs incurred by the Company under clauses 3.2(c) or 3.2(d) and the funds described in clause 3.3(a) may be set off against other amounts owing by the Company to the Vendor under this Purchase Order Agreement.
3.5 Where the Company does not exercise any of its rights under clause 3.2, and the goods or services are left at the Company’s site, the Company will be deemed to have accepted the goods or services.
4.1 The care and custody of the goods, and all risk of loss or damage to the goods remains at all times with the Vendor and does not pass to the Company unless and until the goods:
(a) are delivered to the Company in accordance with the terms of the Purchase Order Agreement; and
(b) have been inspected and accepted by the Company in accordance with clause 3.
4.2 Until risk of loss or damage to the goods passes to the Company in accordance with clause 4.1, the Vendor is responsible for maintaining, at its own cost, adequate insurance for the full replacement value of the goods against all risks customarily insured against for goods of that nature.
5.1 Where the Vendor is providing services at a site owned by the Company or the Company’s group, the Vendor must ensure:
(a) that prior to providing services, all personnel required to work on the site under this Purchase Order Agreement have attended the appropriate inductions (as specified by the Company);
(b) if required by the Company, submit a safety and/or environmental management plan to the Company for review and approval;
(c) that during performance of the services at the Company’s site the Vendor must comply with all of the Company’s site specific rules, procedures and requirements; with all relevant legislation and regulations; and with all directions from the Company’s representatives, including safety or environmental representatives of the Company. The Vendor acknowledges that it will enter the Company’s site at its own risk; and
(d) that in performing any services the Vendor must use its best endeavours not to interfere with any of the Company’s activities, or the activities of any other person on the Company’s site and must ensure that the Company’s site is left secure, clean, orderly and fit for immediate use.
6.1 The price specified in the Purchase Order is inclusive of all costs incurred by the Vendor in the supply of the goods or the performance of the services including all charges for packaging, packing, insurance and delivery of the goods in accordance with this Purchase Order Agreement and the cost of any items used or supplied in conjunction with the services. This price is also inclusive of all duties and taxes except Unless authorised in writing by the Company, no charge for extras (including government duties and taxes, except for GST) in excess of the value of the Purchase Order will be accepted.
6.2 The Vendor must submit a tax invoice which fully complies with all State or Federal legislative requirements for any work performed under this Purchase Order Agreement to receipt of a tax invoice, if any supply made under this Purchase Order Agreement is or becomes subject to GST, the party to whom the supply is made must pay to the party making the supply an additional amount of GST in addition to any consideration payable or to be provided elsewhere in this Purchase Order Agreement. If any party is required to reimburse or indemnify the other party for a cost, expense or liability incurred by the other party, the amount of that cost, expense or liability for the purpose of this Purchase Order Agreement is the amount of the cost, expense or liability incurred less the amount of any credit or refund of GST to which the party incurring the cost, liability or expense is entitled to claim.
6.3 To the extent permitted by law, the Company reserves the right to delay payment of the invoice until the Company is:
(a) able to independently verify the Vendor’s bank account details; or
(b) able to comply with all laws and regulations because the Vendor provides all required information to the Company.
6.4 Payment of the invoice will be made as soon as reasonably practicable after the Company is able to verify or comply as the case may be.
7.1 The Vendor must indemnify and keep indemnified the Company from and against all losses, actions, claims, procedures, damages, costs and expenses of any kind arising out of or in connection with the Vendor’s performance under this Purchase Order Agreement.
7.2 Neither party is liable for any special, indirect or consequential loss or damage, in contract, tort (including negligence) under statute or otherwise, including loss of goodwill, loss of revenue, loss of profit or loss of business.
7.3 The Vendor must, at its own expense, procure and maintain the insurances required in writing by the Company from time to time and ensure that every subcontractor engaged by it maintains insurance in the same These insurances include public liability of $20 million and workers compensation as required at law. In addition to the insurances required in writing by the Company, where the Vendor is providing professional services, the Vendor must procure and maintain professional indemnity insurance of not less than $5 million for each claim and in the aggregate for all claims arising in the same insurance period, covering the liability of the Vendor for any professional services provided by the Vendor under this Purchase Order Agreement. The professional indemnity insurance must be maintained for 5 years after the end of this Purchase Order Agreement. Before supplying any goods or services or performing any work under this Purchase Order Agreement the Vendor must lodge with the Company certificates of currency to evidence the existence of the policies required to be arranged by the Vendor and its subcontractors. All costs incurred by the Company as a consequence of the Vendor not being insured to the appropriate extent, will become a debt due from the Vendor to the Company.
7.4 To the extent permitted by law, the Company may withhold payment to the Vendor of any tax invoice until certificates of currency have been received and confirmed in writing by the Company.
8.1 The Company may be engaged as development manager for a project operated by a third-party principal (Principal), as communicated to the Vendor. Where the Company is engaged as development manager, in addition to the obligations under clause 5, the Vendor may be required to provide services or supply goods to a site owned by the Principal in which case:
(a) the Company may allow the Vendor to access the site for the supply or goods or the performance of services subject to any necessary approvals from the Principal;
(b) the Company will notify the Vendor if the request for access to the site is granted or rejected or subject to any conditions on entry; and
(c) the Vendor acknowledges that the Principal maintains overriding control of the site unless otherwise specified.
8.2 Where the Company is engaged as development manager, the Vendor acknowledges that:
(a) the Principal will be entitled to rely on the goods supplied or the services performed by the Vendor under the Purchase Order Agreement; and
(b) all representations and warranties made by the Vendor to the Company are made separately to the Principal.
9.1 The delivery of goods or the provision of services may be suspended if any circumstances beyond the reasonable control of the Company or of the Vendor prevent the manufacture, delivery or acceptance of the goods or provision of the services and either party provides notice to the other of suspension and details of the relevant circumstances. Shortage of labour or materials or failure or delays of the Vendor’s subcontractors will not constitute circumstances beyond the reasonable control of the Vendor. If any suspension continues for a period greater than six (6) weeks, either party may terminate this Purchase Order Agreement by notice in writing to the other party without liability except for any rights or obligations which may have accrued prior to that date.
9.2 Subject to clause 9.1, without limiting any other rights, the Company may terminate this Purchase Order Agreement without any liability to the Company if the Vendor has not performed within the time specified in the Purchase Order or, if no time is specified, within a reasonable time.
9.3 Either party may immediately terminate this Purchase Order Agreement by notice in writing to the other party if the other party:
(a) breaches any term under this Purchase Order Agreement and such breach is not remedied within 14 days of notice being given to remedy the breach;
(b) breaches any law relating to the supply of the goods or services;
(c) becomes insolvent; or
(d) is convicted of a criminal offence.
9.4 The Company may terminate this Purchase Order Agreement by giving 30 days’ written notice to the Vendor without cause, in which case the Company shall reimburse the Vendor for:
(a) all work in progress; or
(b) work and expenses incurred up to the date of the notice of termination which cannot be reversed or mitigated by the Vendor applying best efforts.
9.5 Unless expressly stated otherwise termination for any reason does not affect the rights of a party that arise before termination or as a consequence of the event or occurrence giving rise to the termination, or as a consequence of the breach of any obligation under this Purchase Order Agreement which survives termination and termination does not affect the rights a party may have under common law.
10.1 Any plans, drawings, designs or information supplied by the Company to the Vendor in connection with this Purchase Order Agreement remain the property of the Company and any information delivered or otherwise communicated by the Company to the Vendor in connection with this Purchase Order Agreement will be regarded by the Vendor as secret and confidential and must not, without the written consent of the Company, be published or disclosed to any third party or used by the Vendor except in implementing this Purchase Order Agreement or if required by law.
10.2 Any new invention, design, technique or literary work (including documents, reports, drawings and computer software) or any improvement to an existing patent made or developed by the Vendor during and for the purposes of this Purchase Order Agreement will be the property of the Company and full details must be communicated immediately and assigned to the Company. The Company has the exclusive right and title to, and interest in, all rights conferred under statute, common law and equity including rights in all copyright, patents, trademarks, business names, trade names, domain names, designs, confidential information, trade secrets or know-how (Intellectual Property Rights), made or created in, or arising out of, the performance of this Purchase Order Agreement.
11.1 The Vendor must keep the commercial details of the Purchase Order and the existence of the Purchase Order with the Company confidential and unless required to disclose so by law, must not disclose it to any person or organisation or make any press release or announcement referring to the Company without the prior written approval of the Company.
11.2 At the prior written request of the Company acting reasonably, the Vendor will sign a confidentiality and non-disclosure Purchase Order Agreement for the benefit of the Company.
11.3 The parties acknowledge and agree that if they have given any written undertakings to each other in relation to the use and disclosure of confidential information (including in the form of a Confidentiality Agreement or Confidentiality Deed Poll) (Other Confidentiality Undertakings), then:
(a) the Other Confidentiality Undertakings continue to apply in addition to the provisions of clauses 11.1 and 11.2; and
(b) in the event of any conflict or inconsistency between the other confidentiality undertakings and the provisions of clauses 11.1 and 11.2, they must comply with the obligation which provides the highest level of confidentiality protection for the information in question.
12.1 The Company prefers (wherever possible) to provide local (Australian) suppliers with a full, fair and reasonable opportunity to supply equipment and If equipment or materials are to be supplied by a subcontractor to the Vendor, then the Vendor must satisfy the terms of this clause 12 in respect of the supply of such equipment or materials.
12.2 The Company may make applications for import duty concessions relating to items procured under this Purchase Order Agreement. The Vendor must provide whatever assistance and/or information including import details in a timely manner to assist in such applications as requested by the Company. Where the Company succeeds in applications, the Vendor may obtain duty funds as requested by the Company and must remit the proceeds to the Company. Where concessions are obtained prior to the importation of goods, and the Vendor is able to import the goods duty free, including under an AusIndustry Determination, the Vendor must pay an amount equal to the customs duty savings to the Company.
12.3 The Vendor undertakes and agrees that:
(a) it has taken reasonable steps to identify, assess and address risks of child labour, bonded labour, human trafficking, forced labour and other forms of modern slavery and slavery-like practices (Modern Slavery Practices) in the operations and supply chains used in the performance of this Purchase Order Agreement; and
(b) it is not currently aware of the use of any form of Modern Slavery Practices (either directly or through a third party supplier) in the performance of this Purchase Order Agreement, or if it is aware of the use of Modern Slavery Practices, it has disclosed this to the Company.
12.4 Upon the request of the Company, the Vendor will provide information on:
(a) the Vendor’s steps to identify and assess risks of Modern Slavery Practices in the operations and supply chains used in the performance of this Purchase Order Agreement;
(b) the Vendor’s processes for addressing any Modern Slavery Practices of which it becomes aware in the operations and supply chains used in the performance of this Purchase Order Agreement;
(c) the content and timing of training for any officer, employee, contractor (including subcontractor) or agent of the Vendor (Personnel) about Modern Slavery Practices; and
(d) the processes for handling a complaint or grievance about Modern Slavery Practices that is consistent with the criteria set out in the United Nations’ Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (Guiding Principles on Business and Human Rights) available to the Personnel (Grievance Mechanism).
12.5 If at any time the Vendor suspects or becomes aware of Modern Slavery Practices in the operations and supply chains used in the performance of this Purchase Order Agreement, the Vendor must as soon as reasonably practicable:
(a) take all reasonable action to address or prevent these practices, including where relevant by addressing any practices of other entities in its supply chains;
(b) take all reasonable action to address or prevent these practices, including where relevant by addressing any practices of other entities in its supply chains;
(c) take all reasonable steps to remediate any adverse impacts caused or contributed by the Vendor from these Modern Slavery Practices, ensuring at all times that the welfare of victims is prioritised in accordance with the Guiding Principles on Business and Human Rights; and
(d) immediately disclose to the Company the Modern Slavery Practices and the response taken in accordance with clauses 12.5(a), 12.5(b) and 12.5(c).
12.6 Without limiting clause 12.5, in performance of this Purchase Order Agreement, the Vendor must:
(a) not require Personnel to pay fees, charges, expenses or financial obligations incurred in order for the Personnel to secure their employment or placement (Recruitment Fees), regardless of the manner, timing or location of the imposition or collection of these Recruitment Fees;
(b) not destroy or exclusively possess, whether permanently or otherwise, the travel or identity documents of Personnel; and
(c) ensure Personnel can access a Grievance Mechanism to safely report any instances of Modern Slavery in the operations and supply chains used by the Vendor in its performance of this Purchase Order Agreement.
12.7 If the Vendor is a “small business” for the purposes of the Unfair Contract Regime pursuant to the Competition and Consumer Act 2010 (Cth) (as amended from time to time), the terms and conditions are amended as follows:
(a) Clauses 9.3(d) and 10.1 do not apply; and
(b) in relation to clause 7.3, public liability insurance is reduced to $10 million and professional indemnity insurance (if applicable) is reduced to $2 million.
13.1 The Vendor must comply with the laws of the jurisdictions in which it operates, including those laws relating to anti bribery and corruption. The Vendor must maintain in place throughout the term of this Purchase Order Agreement policies and procedures to ensure compliance with such anti bribery and corruption laws (which policies and procedures must be disclosed to the Company on request) and must comply with such policies and procedures at all times.
13.2 This Purchase Order Agreement is governed by the laws of Western Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia.
14.1 Clause 6 of the Purchase Order Agreement are replaced by the following clauses where the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act) applies.
14.2 Obligation to pay
(a) Subject to compliance by the Vendor with the Purchase Order Agreement and the requirements in clauses 14.3 and 14.4(b)(5), the Company will pay the Vendor the fees payable under this Purchase Order Agreement. Payments made under this clause 14.2 constitute the Vendor’s only remuneration in connection with this Purchase Order Agreement.
14.3 Pre-conditions to payment
(a) As a pre-condition to the Company’s obligation to pay the fees:
(1) the Vendor must issue a payment claim or invoice in accordance with clause 14.4 containing sufficient detail for the Company to verify its accuracy and completeness;
(2) the Company must be satisfied with the Company’s independent verification checks of the Vendor Account before the Company will make any payment to the Vendor.
14.4 Payment claims
(a) The Vendor may, on the 25th day of each month, issue a payment claim (which may be in the form of an invoice) for fees payable in respect of work performed, or milestones or deliverables completely achieved, in the preceding month.
(b) A payment claim must include:
(1) the name and current address of the Vendor;
(2) the breakdown and total of the amount payable by the Company;
(3) any GST and customs and excise taxes and duties payable by the Company, along with the Vendor’s GST number;
(4) if applicable, the Purchase Order number; and
(5) in the event a payment claim is submitted for services performed on a reimbursable or unit price / unit rate basis, accompanied by documentation supporting the measurement and/or cost.
(c) The Vendor must provide any further information or assistance reasonably requested by the Company for the purposes of assessing a payment claim or invoice.
14.5 Payment schedule, invoicing and payment
(a) The Company will assess a payment claim compliant with clause 14.4 and issue a payment schedule within 10 Business Days of receipt in accordance with the SOP Act. The payment schedule will specify:
(1) the amount claimed which is payable;
(2) if the amount differs from the amount claimed under clause 14.4 and the reasons for the difference; and
(3) any other amounts that are payable under this Purchase Order Agreement.
(b) The Company may issue a revised payment schedule at any time to correct any error in a previous payment schedule and may pay the amount stated in a payment schedule despite the existence of any dispute.
(c) By submitting a payment claim, the Vendor warrants that all personnel, taxes, costs and amounts due and payable to third parties in connection with the goods and services have been paid and must provide confirmation of this with each payment claim.
(d) The Vendor must issue an invoice for the amount set out in the payment schedule within 2 Business Days of receipt of the payment schedule. The invoice must be addressed to the Company at the address set out in the Purchase Order.
(e) Subject to receipt of a compliant invoice, the Company will pay the invoiced amount by electronic funds transfer to the account nominated by the Vendor within 8 Business Days. If an invoice is non-compliant, it may be returned for correction. Any overpayment must be promptly repaid, and all payments are payments on account only.
(f) The Company may set off any amount genuinely owed by the Vendor against any amount payable to the Vendor under this Purchase Order Agreement.
14.6 SOP Act protections
(a) Nothing in this Purchase Order Agreement limits or restricts the Vendor’s rights under the SOP Act.
(b) The Vendor must promptly provide the Company with copies of any notices received or issued under the SOP Act and ensure that its subcontractors do the same.
(c) If a subcontractor is entitled to suspend work under section 62 of the SOP Act, the Company may pay the subcontractor directly and recover the amount paid from the Vendor as a debt. The Company:
(1) must notify the Vendor prior to making payment pursuant to this clause 14.6(c); and
(2) will not make a payment pursuant to this clause 14.6(c) where the Vendor demonstrates to the Company that it has reasonable grounds to have withheld payment to the subcontractor.
(d) The Vendor indemnifies the Company, the Company against all damage, expenses (including lawyers’ fees and expenses on a solicitor/client basis), loss (including financial loss) or liability of any nature suffered or incurred by the Company, the Company’s affiliates or Company persons arising out of:
(1) a suspension by a subcontractor of work (which forms part of the Services) under section 62 of the SOP Act;
(2) a subcontractor exercising a statutory lien, under section 62 of the SOP Act, over unfixed plant or materials supplied by the subcontractor for use in carrying out work forming part of the Services; and
(3) a failure by the Vendor to comply with its obligations under this clause 14.6(d).
Fiveight acknowledge the Whadjuk people of the Noongar nation as the Custodians of the land on which we work.