Purchase Order Terms and Conditions

Exclusive terms

1. The Purchase Order and these Conditions (collectively the Agreement) constitute the entire agreement between the party referred to in the ‘Additional information’ section of the Purchase Order (Company) and the Vendor for the supply of the goods or services specified in the Purchase Order. In the event of any conflict between the Purchase Order and these Conditions, the Purchase Order will take precedence.
2. This Agreement may not be varied except in writing signed by Company. 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 Company to agree to such a variation for any other Purchase Orders.
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 Company signs those terms and conditions or annexes the terms and conditions to the Purchase Order).
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.

Specific warranties and conditions

5. The Vendor warrants and represents that it is duly incorporated and has obtained all necessary approvals to execute and perform its obligations under this Agreement.
6. If the Vendor is contracting in the capacity of a trustee of a trust, then the Vendor warrants and represents to Company that:
   (a) it is duly and validly appointed as trustee for the trust;
   (b) it has the lawful authority to enter into this 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 Agreement.
7. In the absence of a specification or sample, the Vendor warrants and represents that all goods or services supplied must be the best of their respective kinds and subject to Company’s satisfaction. In all cases the goods or services are to be of first class workmanship, of merchantable quality and fit for the purpose as represented by the Vendor to Company or the purpose which could reasonably be inferred by a professional supplying the goods or services. 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.
8. 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.
9. The Vendor warrants and represents that it has complete ownership of the goods free of any liens, charges and encumbrances and Company will be entitled to clear, complete and quiet possession of the goods.
10. The Vendor warrants and represents that any of the goods or services supplied under this 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.
11. The representations and warranties under clauses 5, 6, 7, 8 and 9 are made on a continuing basis and remain unaffected notwithstanding suspension, termination or expiry of this Agreement.

Inspection and acceptance

12. Company has a reasonable time after delivery to inspect the goods and reserves the right to inspect any goods before despatch from the Vendor’s premises. 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 services. The Vendor will permit Company to audit and examine any books and records at any time. 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 Company.
13. Without limiting any other rights or remedies it may have, 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; or
    (d) appoint a third party to repair, make good or resupply the defective goods or services.
14. The Vendor must:
    (a) with respect to a decision made by Company under clause 13(a), provide a full refund of any purchase price paid in respect to any rejected goods or services and Company may procure such goods or services elsewhere; and
    (b) with respect to a decision made by Company under clause 13(b), repair, resupply or make good the defective goods or services at its cost.
15. If Company elects in writing, the funds described in clause 14(a) may be set off against other amounts owing by the Company to the Vendor under this Agreement.
16. If Company does not make a decision under clause 13, and the goods or services are left at Company’s site, Company will be deemed to have accepted the goods.

Risk

17. The responsibility for care and custody of the goods together with the risk of loss or damage to the goods remains with the Vendor and does not pass to Company until Company:
    (a) takes delivery of the goods; and
    (b) inspects and accepts the goods in accordance with clauses 12, 13, 14, and 15.

Site rules

18. Prior to providing any services at Company’s site, the Vendor must ensure:
    (a) that all personnel required to work on the site under this Agreement have attended the appropriate inductions (as specified by Company); and
    (b) if required by Company, submit a safety and/or environmental management plan to Company for approval.
19. During performance of the services at the site the Vendor must comply with all of Company’s site specific rules, procedures and requirements; with all relevant legislation and regulations; and with all directions from Company’s representatives, including safety or environmental representatives of Company. The Vendor acknowledges that it will enter Company’s site at its own risk.
20. In performing any services the Vendor must use its best endeavours not to interfere with any of Company’s activities, or the activities of any other person on Company’s site and must ensure that Company’s site is left secure, clean, orderly and fit for immediate use.

Price

21. The price 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 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 GST. Unless authorised in writing by 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.
22. The Vendor must submit a tax invoice which fully complies with all State or Federal legislative requirements for any work performed under this Agreement. Subject to receipt of a tax invoice, if any supply made under this 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 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 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.
23. 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.
24. 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.

Liability and insurance

25. The Vendor must indemnify and keep indemnified 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 Agreement.
26. 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 opportunity.
27. The Vendor must, at its own expense, procure and maintain the insurances required in writing by Company from time to time and ensure that every subcontractor engaged by it maintains insurance in the same manner. In addition to the insurances required in writing by 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 Agreement. The professional indemnity insurance must be maintained for 6 years after the end of this Agreement. Before supplying any goods or services or performing any work under this Agreement the Vendor must lodge with 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 Company as a consequence of the Vendor not being insured to the appropriate extent, will become a debt due from the Vendor to Company.
28. Company may withhold payment to the Vendor of any tax invoice until certificates of currency have been received and confirmed in writing by Company.‍

Termination and suspension

29. The delivery of goods or the provision of services may be suspended if any circumstances beyond the reasonable control of 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 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.
30. Subject to clause 29, without limiting any other rights, Company may terminate this Agreement without any liability to the Vendor if not performed within the time specified in the Purchase Order or, if no time is specified, within a reasonable time.
31. Either party may immediately terminate this Agreement by notice in writing to the other party if the other party (a) breaches any term under this 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.
32. Company may terminate this Agreement by giving 30 days’ written notice to the Vendor without cause, in which case 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.
33. 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 Agreement which survives termination and termination does not affect the rights a party may have under common law.‍

Intellectual Property

34. Any plans, drawings, designs or information supplied by Company to the Vendor in connection with this Agreement remain the property of Company and any information delivered or otherwise communicated by Company to the Vendor in connection with this Agreement will be regarded by the Vendor as secret and confidential and must not, without the written consent of Company, be published or disclosed to any third party or used by the Vendor except in implementing this Agreement or if required by law.
35. 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 Agreement will be the property of Company and full details must be communicated immediately and assigned to Company. 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 Agreement.

Confidentiality

36. The Vendor must keep this document and the terms and existence of this document confidential and unless required to do so by law, must not disclose it to any person or organisation or make any press release or announcement referring to Company without the prior written approval of Company.
37. At the prior written request of Company acting reasonably, the Vendor will sign a confidentiality and non-disclosure agreement for the benefit of Company.

Other matters

38. Company prefers (wherever possible) to provide local (Australian) suppliers with a full, fair and reasonable opportunity to supply equipment and materials. If equipment or materials are to be supplied by a subcontractor to the Vendor, then the Vendor must satisfy the terms of this clause in respect of the supply of such equipment or materials.
39. Company may make applications for import duty concessions relating to items procured under this 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 Company. Where Company succeeds in applications, the Vendor may obtain duty funds as requested by Company and must remit the proceeds to 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 Company.
40. 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 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 Agreement, or if it is aware of the use of Modern Slavery Practices, it has disclosed this to the Company.
41. 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 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 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).
42. 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 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 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
    (c) immediately disclose to the Company the Modern Slavery Practices and the response taken in accordance with subclauses 42(b) and (c) above.
43. Without limiting clause 42, in performance of this 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 Agreement.

Governing law and laws of other jurisdictions

44. 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 Agreement policies and procedures to ensure compliance with such anti bribery and corruption laws (which policies and procedures must be disclosed to Company on request) and must comply with such policies and procedures at all times.
45. This 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.