“Claim” means any claim, demand, action, or proceedings of
any nature, whether actual or threatened.
"Date for Delivery” means the date(s) by which the Supplier
must deliver the Services as stated in the Purchase Order and
as amended in accordance with the Purchase Order.
“Goods” means the materials, products or goods detailed in the
Purchase Order to be supplied by the Supplier in accordance
with these Purchase Order Terms and Conditions.
“GST” has the meaning given to it in the A New Tax System
(Goods and Services Tax) Act 1999.
“Head Contract” means the agreement between the Purchaser
and its customer for which the Services are required.
“Place for Delivery” means the location where the Supplier
must deliver the Services as stated in the Purchase Order.
“Price” means the total amount stated in the Purchase Order
expressed in AUD as may be adjusted in accordance with the
Purchase Order.
“Purchase Order” means the purchase order issued by the
Purchaser detailing the Services to be provided by the Supplier
in accordance with these Purchase Order Terms and
Conditions, including any special conditions, specifications and
other documents referred to therein.
“Purchaser” means the relevant AE Smith, NuvoGroup or
Envar entity named in the Purchase Order.
“Services” means the works or services stated in the Purchase
Order and all activities that are necessary or incidental to that
work, including the supply of Goods (if any).
“Site” means the location owned or occupied by the Purchaser
or a third party, to which the Supplier is granted access in
accordance with the terms of this Purchase Order for the
performance the Services.
“Supplier” means the person, company or organisation named
as the supplier or subcontractor in the Purchase Order.
2. Entire Agreement
Subject to clause 4.1, the Purchase Order represents the entire
agreement between the Purchaser and the Supplier in relation
to its subject matter and supersedes all prior correspondence,
quotations, and negotiations.
3. Acceptance
The Supplier acknowledges that it is bound by the terms of the
Purchase Order by its acceptance (whether in writing, verbally
or by commencement of the performance of the Services).
4. Order of Precedence
4.1
Where there is a specific subcontract or agreement in
place ("Framework Agreement") between the parties, to
the extent of any inconsistency between the Framework
Agreement and this Purchase Order, the documents
should be read with the following order of precedence: (a)
Framework Agreement; (b) the Purchase Order.
4.2
To the extent clause 4.1 does not resolve any
inconsistency, the Supplier must promptly notify the
Purchaser. The Supplier must comply with the direction of
the Purchaser as to the interpretation to be adopted in
resolving the inconsistency.
4.3
Any additional or conflicting terms and conditions, whether
provided by the Supplier before or after the issuance of
this Purchase Order, shall be deemed null and void and
have no effect on the rights and obligations of the parties
under this Purchase Order.
5. Price
5.1
The Price of the Services payable by the Purchaser shall
be that specified in the Purchase Order and shall be fixed
and firm, inclusive of GST, and may only be varied in
accordance with this Purchase Order.
5.2
The Price is inclusive of all taxes, duties and government
charges, freight, and unloading costs relating to the
delivery of the Services
6. Warranties
6.1
The Supplier warrants that the Services:
(a) are strictly in accordance with the Purchase Order,
relevant laws and standards, and relevant
specifications;
(b) are of merchantable quality and are fit for the purpose
for which they are intended;
(c) are to a high standard and are free of defects in
material, workmanship, and design;
(d) are adequately packaged and free from damage;
(e) do not contain any hazardous substances (including
but not limited to asbestos or silica);
(f) will be performed in a safe manner by experienced and
skilled personnel with all relevant permits, licenses,
and qualifications; and
(g) are new and free of all liens, charges, security
interests and encumbrances.
6.2
These warranties, the Purchaser’s rights under clause 12
and any other warranties or guarantees contained in the
Purchase Order, are in addition to and do not limit any
implied or expressed warranties at law.
6.3
The Supplier agrees that the Purchaser or its agents shall
have the right of inspection of all Services performed
under this Purchase Order while in any stage of
engineering, manufacture, dispatch, delivery, or
installation. The Purchaser or its agents shall have the
power to reject any Services performed or being
performed that does not conform to the Purchase Order.
Any work rejected shall be reperformed at no additional
cost to the Purchaser. Any such inspection shall not relieve
the Supplier of any obligations contained in the Purchase
Order or at law.
7. Compliance with Laws
7.1
The Supplier must comply with:
(a) all applicable laws of the Commonwealth, any State,
Territory or local authority;
(b) any directions given by the Purchaser under any
applicable occupational health and safety laws;
(c) all applicable Australian Standards published by
Standards Australia and any other relevant standards;
and
(d) the Purchaser’s Environmental Policy, Health & Safety
Policy, Integrated Management Plan and Modern
Slavery Policy, as updated by the Purchaser from time
to time.
8. Performance
8.1
The Supplier must deliver and complete the Services at
the Place for Delivery in accordance with this Purchase
Order, and as directed by the Purchaser.
8.2
The Supplier will not be granted access to the Site until it
has completed any inductions required by the Purchaser.
The cost of all inductions is deemed to have been included
in the Price.
8.3
The Supplier must not carry out any work or use any plant
or equipment on Site until the Supplier has provided all
SWMS, permits, authorisations, licenses, and other
documents requested by the Purchaser.
8.4
The Supplier acknowledges that it will not have sole
access to the Site during the performance of the Services.
The Supplier may be required to coordinate the Services
with other contractors on Site and has included such
allowance in the Price.
8.5
Subject to the satisfaction of the Supplier’s obligations
under clauses 8.2 and 8.3, the Purchaser will grant the
Supplier sufficient access to carry out the Services.
9. Indemnity and Insurance
9.1
The Supplier is liable for and indemnifies the Purchaser,
its directors, officers, employees and agents against all
loss, damage and claims arising from loss of or damage
to property, injury, illness, and death, and arising from any
act or omission of the Supplier in relation to the provision
of Services under the Purchase Order.
9.2
The Supplier will, for so long as any obligations remain in
connection with the Purchase Order, effect and maintain
appropriate insurance policies as follows:
(a) public and products liability insurance for $20,000,000
per occurrence and unlimited in the aggregate;
(b) unless otherwise waived by the Purchaser,
professional indemnity insurance for $1,000,000 per
occurrence and $5,000,000 in the aggregate;
(c) workers compensation insurance as required by law;
(d) if the Services involve the use of a motor vehicle,
motor vehicle insurance as required by law, and
liability insurance for third party property with a sum
insured of not less than $20,000,000 per occurrence;
and
(e) any other policies as advised by the Purchaser from
time to time.
9.3
The insurance policies required by clause 9.2 must include
a principal’s indemnity provision which insures the
Purchaser against its vicarious liability arising from the
acts of the Supplier, its employees and subcontractors,
and a waiver of subrogation.
9.4
The Supplier must provide copies of the certificates of
currency for the insurances required by clause 9.2 prior to
the commencement of the Services.
9.5
The failure to effect and maintain the insurances under this
clause constitutes a substantial breach of contract.
10. Variations
10.1
The Supplier must not vary the Services without the prior
written consent on the Purchaser.
10.2
The Purchaser may at any time direct the Supplier to alter,
amend, omit, add to, or otherwise vary the Services
(“Variation”) by issuing the Supplier with a written direction
(“Variation Direction”). The Supplier must immediately
comply with any Variation Direction under this clause. No
Variation will invalidate or constitute a breach of this
Purchase Order.
10.3
The Supplier will provide a quote to the Purchaser setting
out the cost of the Variation and the impact of the Variation
(if any) on the Date for Delivery. As soon as practicable
after receipt of the quote from the Supplier, the Purchaser
will either accept the quote by signing and returning it to
the Supplier or reject the quote in writing. If the Purchaser
and the Supplier are unable to agree upon the cost of the
Variation, a reasonable price will be determined by the
Purchaser and the Price will be adjusted accordingly.
10.4
The Supplier is only able to claim additional costs for a
Variation where the Purchaser has issued a Variation
Direction, and the additional cost is accepted in writing by
the Purchaser.
11. Time
11.1
The Supplier must proceed with and deliver the Services
diligently, without delay, and by the Date for Delivery.
11.2
Delivery of the Services is deemed to have occurred only
when a duly authorised representative of the Purchaser
has certified the completion of the Services in writing.
11.3
If the Supplier is or will likely be delayed in the delivery of
the Services, the Supplier must give written notice to the
Purchaser within 2 business days of becoming aware of
the event giving rise to the delay. The notice must include
details of the cause of the delay and the extent of the delay
to the Date for Delivery of the Services. If the sole cause
of the delay is due to a breach of the Purchase Order by
the Purchaser or a Variation Direction, the Purchaser will
adjust the Date for Delivery (acting reasonably) and advise
the Supplier in writing of the adjusted Date for Delivery.
11.4
A breach of clause 11.1 by the Supplier is deemed to be a
substantial breach of the Purchase Order. The Supplier is
liable for and indemnifies the Purchaser against all costs,
loss and damage suffered by the Purchaser arising from
the Supplier’s breach of clause 11.1.
11.5
If the Supplier intends to deliver any Goods which form
part of the Services prior to the Date for Delivery, the
Supplier must seek the Purchaser’s prior written approval,
and will be liable to pay any storage costs incurred by the
Purchaser.
11.6
The Purchaser may unilaterally extend the Date for
Delivery at its discretion by giving written notice to the
Supplier. The Supplier acknowledges that it has no
entitlement to costs arising from such notice.
12. Warranty Period
12.1
A warranty period for the Services will commence on the
date after completion of the Services as certified by the
Purchaser, and expire on the later of:
(a) a period of not less than 12 months; or
(b) the expiry of the Purchaser’s warranty period under
the Head Contract,
(“Warranty Period”).
12.2
If at any time from the date of the Purchase Order to the
expiry of the Warranty Period, the Services are found to
be not in accordance with the Purchase Order, the
Purchaser may, by notice, direct the Supplier to:
(a) repair any defect in the Services;
(b) replace the Goods or reperform the Services; or
(c) complete the Services,
at its discretion and at no additional cost to the
Purchaser, including any subsequent cost of rework.
12.3
Where the Supplier fails to comply with the Purchaser's
direction under clause 12.2 within 3 days after notification
by the Purchaser, the Purchaser may perform the work
stated in the direction or have it performed by others. The
cost of doing so will be a debt due and payable from the
Supplier to the Purchaser.
12.4
If requested by the Purchaser, the Supplier must provide
a warranty certificate for the Warranty Period in a form
approved by the Purchaser, for the benefit of the
Purchaser and such other parties advised by the
Purchaser.
12.5
The Supplier must assign the benefit of any
manufacturer’s warranties that it receives for components
of the Services to the Purchaser.
12.1
The Supplier shall, without limitation, indemnify the
Purchaser and its directors, officers, employees and
agents against any loss, damage, expense, claim or
liability suffered or incurred by the Purchaser, whether
consequential or otherwise, arising from a breach of any
of the warranties under clause 6.1.
13. Payment
13.1
The Supplier may submit a payment claim to the
Purchaser no later than the 20th of the calendar month, or
such other date as set out in the Purchase Order. The
Supplier may claim the amount of the Price for the
Services completed in accordance with this Purchase Order and must include details of the Services completed
and supporting evidence of the amount claimed.
13.2
The Purchaser will assess the payment claim within 10
business days of its receipt, and certify the amount
payable to the Supplier in accordance with this Purchase
Order.
13.3
The Supplier must submit a valid tax invoice for the
amount certified as payable by the Purchaser within 2
days of the receipt of the Purchaser’s certification under
clause 13.2. The tax invoice must clearly state the
payment claim reference date, the correct Purchaser
details, the Supplier’s name and ABN, a description of the
Services being claimed, the Purchase Order number and
any other information requested by the Purchaser.
13.4
Unless otherwise agreed in writing, the Purchaser will pay
for the Services within 30 days after receipt of a tax invoice
issued in accordance with clause 13.3, or such other time
as required by the relevant Security of Payment legislation
in the jurisdiction under clause 20.6.
13.5
Where the Purchase Order states that retention monies
are to be retained, the Purchaser will withhold retentions
from invoice payments in the amount of 10% per invoice
up to a total of 5% of the Price. Subject to the Purchaser’s
rights under clause 13.6, the Purchaser will release 50%
of the retention monies held to the Supplier upon the
completion of the Services and the remaining 50% of the
retention monies will be released to the Supplier upon
expiry of the Warranty Period. The Supplier may elect to
provide unconditional Bank Guarantees in lieu of retention
monies with the Purchaser’s written consent.
13.6
The Supplier acknowledges that the retention monies are
held for the purpose of ensuring the due and proper
performance of the Supplier’s obligations under the
Purchaser Order. The Purchaser may deduct from the
retention monies any amount that becomes due and
payable from the Supplier to the Purchaser.
13.7
Payment of the Services by the Purchaser does not
constitute acceptance or completion of the Services by the
Purchaser.
13.8
The Purchaser is entitled to set off from any amount owed
by the Purchaser to the Supplier, any amount the Supplier
owes to the Purchaser, whether under this Purchase
Order or otherwise.
14. Title and Risk
14.1
The Supplier warrants that the Goods are owned by the
Supplier, or that the Supplier will obtain legal title to the
Goods, by the date that title passes to the Purchaser
under clause 14.2.
14.2
Title to the Goods passes to the Purchaser upon the
earlier of:
(a) delivery of the Goods to the Place for Delivery; or
(b) any payment made by the Purchaser for the Goods.
14.3
Risk of loss or damage to the Goods passes to the
Purchaser upon delivery of the Goods in accordance with
the Purchase Order.
14.4
The Purchase Order constitutes a security agreement and
secures the interest of the Purchaser in all Goods and
Services and their related materials in accordance with the
Personal Property and Security Act 2009 (Cth).
15. Intellectual Property
15.1
Intellectual property includes all copyright in relation to
inventions (including patent rights), registered and
unregistered trademarks (including service marks),
design, and circuit layouts, and all other rights resulting
from intellectual activity.
15.2
Unless otherwise agreed in writing between the parties, all
intellectual property created during the performance of the
Purchase Order and relating to the Services is, from the
time of creation, owned by the Purchaser.
15.3
The Supplier hereby grants the Purchaser an irrevocable
and transferrable license to use the Supplier's background
or pre-existing intellectual property for the purpose of
fulfilling its obligations under the Purchase Order. This
license includes the right to sublicense such rights to
subcontractors, affiliates, or other third parties engaged by
the Purchaser in connection with the performance of the
Services outlined in the Purchase Order.
15.4
The Supplier shall indemnify the Purchaser and its
directors, officers, employees and agents from any loss,
damage, expense, claim, or liability suffered or incurred by
the Purchaser arising from the Supplier’s breach of clause
15 and any claim by a third-party alleging infringement of
intellectual property rights in relation to the Services.
16. Confidentiality
Both parties agree to treat as confidential any information,
whether oral, written, or otherwise, disclosed by one party to the
other that is not publicly available. Neither party shall disclose,
reproduce, or use the confidential information for any purpose
other than the performance of obligations under the Purchase
Order without the prior written consent of the disclosing party.
17. Subcontracting and Assignment
The Supplier must not, without the Purchaser's prior written
consent, subcontract the whole or any part of the Services, or
assign its rights, under the Purchase Order. Despite any
approval to subcontract, the Supplier remains fully liable for the
performance of its obligations under the Purchase Order.
18. Disputes
18.1
If a dispute arises between the parties, either party may
give a written notice to the other party identifying details of
the dispute (“Notice of Dispute”). The Supplier must
continue to perform its obligations under this Purchase
Order despite the existence of a dispute
18.2
Within 10 business days of the receipt of a Notice of
Dispute, a representative of the Supplier and the
Purchaser who have the authority to bind the respective
parties must confer at least once with a view to reaching a
resolution. All aspects of every such conference, except
the fact that it took place, are privileged and confidential.
19. Termination
19.1
If the Supplier commits any breach of this Purchase Order
and fails to remedy such breach within 7 days of
notification by the Purchaser requiring it to do so, the
Purchaser may immediately terminate the Purchase Order
in whole or in part.
19.2
The Purchaser may immediately, and without cause,
terminate the Purchase Order or reduce the scope of the
Services by giving written notice to the Supplier.
19.3
Upon termination, the Purchaser may:
(a) cease payments under the Purchase Order;
(b) recover from the Supplier all sums paid for the
Services not provided and any other amount due and
payable from the Supplier to the Purchaser; and
(c) purchase similar services from alternative suppliers or
subcontractors and, where entitled under the terms of
the Purchase Order, claim by way of indemnity from
the Supplier any loss it may incur in doing so.
20. General
20.1
Except for the Supplier’s claim for payment under clause
13.1, if the Supplier wishes to make a Claim against the
Purchaser, the Supplier shall notify the Purchaser in
writing within 5 business days from the commencement of
the event giving rise to the Claim. Failure to provide such
notice within the stipulated timeframe shall result in the
Supplier forfeiting any entitlement to the Claim, and the
Purchaser shall be released from any liability or obligation
related to the unnotified Claim.
20.2
Any communications or notices given under this Purchase
Order must be in writing, sent by either email or registered
post, and addressed to the relevant party’s representative.
20.3
Any modifications to the Purchase Order must be in writing
and signed by both parties.
20.4
If any term of this Purchase Order is found to be illegal or
unenforceable, then that term may be severed, and the
remaining provisions of the Purchase Order continue in
force.
20.5
The rights and obligations contained in clauses 6, 7, 9,
12.4, 12.5, 12.6, 14, 15, 16 and 19 survive termination of
the Purchase Order.
20.6
The terms of the Purchase Order shall be governed by,
subject to and construed in accordance with the laws of
the State or Territory in which the Services are performed,
and the parties accept the jurisdiction of the courts in that
State or Territory and the Commonwealth of Australia.