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1. DEFINITIONS AND INTERPRETATION
In these terms and conditions: (a) Agreement means an agreement between the Purchaser and Supplier for the supply of Goods or Services constituted by a Purchase Order, these Conditions and any agreed variation; (b) Conditions mean these terms and conditions of purchase; (c) Date for Delivery means the date for delivery of the Goods and/or performance of the Services as set out in the Purchase Order; (d) Delivery Point means in relation to Goods, the delivery address for the Goods as set out in the Purchase Order and in relation to the Services, the place for performance of the Services as set out in the Purchase Order; (e) Goods means the goods described in the Purchase Order; (f) GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended (GST Act or any replacement or any other relevant legislation and regulations; (g) Intellectual Property Rights means any intellectual or industrial property right, whether protected by statute, at common law or in equity, including any patent, registered design, (whether or not registrable), invention, trade secret, circuit layout design, or right in relation to circuit layouts, right to confidential information, technical information, trademark or name, copyright or other protected right; (h) Laws includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by-law whether commonwealth, state, territorial or local in relation to environmental and occupational health and safety matters; (i) Loss means any loss, liability, costs (including legal costs at the higher of an indemnity or solicitor-client basis) or expense incurred by the Purchaser relating to this Agreement; (j) Personal Information means:
(a) information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; or
(b) information or a document that relates to the affairs or personal particulars of another person (such as a company or a business),
which is received or learnt from any source as a consequence of or in the performance of this Agreement.
(k) PPSA means the Personal Property Securities Act 2009 (Cth); (l) Price means the price payable by the Purchaser to the Supplier as shown on the Purchase Order. (m) Purchase Order means the Purchaser’s order accompanying these Conditions or otherwise placed or communicated with the Supplier and includes these Conditions; (n) Purchaser means Cleanaway Pty Ltd or any related body corporate (within the meaning of section 50 of the Corporations Act) as specified in the Purchase Order; (o) Representative of a party means that party’s director, or authorised officer, employee, agent or sub-contractor; (p) Services means the services described in the Purchase Order; (q) Specifications means any technical or other specification relating to the Goods and/or Services referred to in the Purchase Order and details of which have been supplied by the Purchaser or its Representative to the Supplier; and (r) Supplier means the person who sells the Goods or provides the Services to the Purchaser.
In the interpretation of these Conditions, unless the context or subject matter otherwise requires: (a) the singular includes plural and vice versa; (b) a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns; (c) if a party consists of more than 1 person, the Agreement binds each of them separately and any 2 or more of them jointly; (d) an obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly; and (e) time is of the essence in respect of all of the Supplier’s obligations to the Purchaser.
2.1 Consideration The Supplier agrees to supply the Goods and/or Services to the Purchaser in accordance with the Agreement, and in consideration for this the Purchaser agrees to pay the Price to the Supplier.
These Conditions apply to all Purchase Orders, and: (a) to the extent the Supplier’s terms and conditions are supplied with the Goods and/or Services (including as printed on consignment notes or other documents), those terms and conditions will be of no legal effect; and (b) any terms and conditions implied by statue or otherwise are excluded to the extent it is lawful to do so.
3. BINDING TERMS AND CONDITIONS
3.1 Entire Agreement
The entire Agreement between the Purchaser and the Supplier for the purchase of the Goods and/or Services by the Purchaser from the Supplier is constituted by: (a) these Conditions; (b) any other terms and conditions (including Specifications) incorporated by reference in the Purchase Order as long as the Supplier has details of these terms and conditions; (c) any other terms and conditions which are imposed by law and which cannot be excluded; and (d) any agreed written variation. For the avoidance of doubt, nothing in this clause is intended to exclude liability for fraud or fraudulent misrepresentation.
These Conditions shall apply to all contracts for the purchase of Goods and/or Services by the Purchaser from the Supplier to the exclusion of any other terms and conditions or any other materials which the Supplier may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier, irrespective of their date of communication to the Purchaser, except to the extent that the Supplier’s terms and conditions are agreed to in writing and signed by the Purchaser.
Acceptance of a Purchase Order by the Supplier will occur on the earlier of: (a) the Supplier’s oral or written acceptance being received by the Purchaser; or (b) 5 business days after the Purchase Order is sent by the Purchaser to the Supplier, provided the Supplier has not rejected the Purchase Order within that period. and will constitute acceptance of these Conditions by the Supplier.
4.1 Price of Goods and/or Services supplied
The Price specified in the Purchase Order is fixed, and is not subject to increase. The price includes all costs of testing, inspection, labelling, packing and freight and delivery to and off-loading at the Delivery Point as specified in the Purchase Order.
The Price at which the Goods and/or Services are provided by the Supplier to the Purchaser includes (unless otherwise stated or agreed in writing) GST, if applicable.
Unless otherwise stated or agreed in writing the Supplier is responsible for freight and delivery to the Delivery Point as specified in the Purchase Order.
5.1 Payment Terms
Payment for Goods and/or Services supplied by the Supplier to the Purchaser will be tendered within 45 days after the end of the month in which the Supplier’s invoice for those Goods and/or Services, issued in accordance with clause 5.2, is received by the Purchaser.
The Supplier must provide the Purchaser with a GST compliant tax invoice for the Goods and/or Services provided under this Agreement. Each invoice must include: (a) a reference to the Purchase Order number; (b) a reference to the item number; (c) a detailed description of the delivered Goods or performed Services (including sizes, quantities, weight, unit and price); (d) the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order; and (e) the amount of any applicable GST. The Purchaser will only accept invoices which bear such information and may require the Supplier to reissue a valid invoice prior to payment.
6. DELIVERY AND PERFORMANCE
6.1 Delivery of Goods and Performance of Services
(a) The Supplier must ensure that the Good and/or Services are delivered or performed (as applicable) at the Delivery Point on the Date for Delivery. Should any change in the Date for Delivery (or dates) be proposed by the Supplier for any reason, immediate written notice must be given to the Purchaser who may, acting reasonably, accept or reject such proposal. (b) If the Purchaser rejects a proposal to change the Date for Delivery and the Supplier fails to deliver on the Date for Delivery, the Purchaser may by written notice to the Supplier, terminate this Agreement or the agreement to supply particular Goods and/or Services under a Purchase Order. If the Purchaser has paid a deposit, the Supplier must refund the deposit in full to the Purchaser. This clause does not limit other rights or remedies available to the Purchaser under this Agreement.
7. TITLE AND RISK
Property in the Goods passes to the Purchaser on delivery of the Goods by the Supplier.
The Supplier bears all risks of loss and damage (excluding loss or damage caused by the Purchaser) to the Goods and/or Services until final acceptance by the Purchaser in accordance with clause 7.4.
7.3 Final inspection and acceptance
Notwithstanding any prior inspections, usage or payments, all Goods shall be subject to: (a) final inspection which may include measurement, testing or examination; and (b) acceptance at the Purchaser’s facility within a reasonable time (but not more than 90 days) after receipt of the Goods.
7.4 Date of acceptance
Acceptance of the Goods and/or Services by the Purchaser will occur on the earlier of: (a) the date upon which the Purchaser notifies the Supplier in writing of acceptance; or (b) if the Purchaser has not rejected the Goods and/or Services under clause 7.5, 90 days after receipt of the Goods and/or Services.
7.5 Rejected Goods or Services
The Purchaser may, within 90 days of delivery of the Goods or performance of the Services at the Delivery Point, reject any Goods and/or Services which do not comply strictly with the Agreement. Once the Goods and/or Services are rejected, the Purchaser, in its sole discretion, may require: (a) in the case of either Goods or Services, the Supplier to refund any payment within 14 days; or (b) in the case of Goods, replacement of the Goods to the Purchaser’s satisfaction; or (c) in the case of Services, the re-supply of the Services. Title and risk in the rejected Goods immediately re-vests in the Supplier. The Supplier must, at its cost, remove from the rejected Goods any of the Purchaser’s intellectual property or any other distinguishing features such as name or symbols.
7.6 No Waiver
The Purchaser’s acceptance does not waive rights. If the Purchaser accepts any Goods or Services, this does not extinguish any of the Purchaser’s rights if the Goods or Services do not comply with a term of the Agreement.
8. SUPPLIER WARRANTIES
8.1 Warranties relating to Goods
The Supplier warrants that the Goods: (a) are safe and free from risk to heath and safety and compliant with all relevant laws; (b) are and will remain free from any Security Interest (as that term is defined in the PPSA), or any other security, charge or encumbrance; (c) are free from all defects or faults; (d) are of acceptable quality; (e) are clearly and durably labelled identifying the Goods and including any appropriate and correct warning and instructions; (f) are fit for the purpose for which purchased (as communicated by the Purchaser before the Purchase Order or as should be reasonably understood by the Supplier of the Goods who is experienced in such technical and specific matters relating to the Goods and the purpose they are intended for); (g) match the description and the Specifications referred to in the Purchase Order; (h) comply with any representations, descriptions, samples or other specifications (including the Specifications) including quality, function, performance or design; (i) comply with all legislation, regulations and other governmental requirements in Australia relating to the Goods including those relating to manufacturing, packaging, labelling and transportation; and (j) include any applicable Supplier’s warranty that passes to the consumer from the Purchaser without liability to the Purchaser.
8.2 Warranties relating to Services
The Supplier warrants that the Services: (a) shall be performed by personnel that are suitably qualified, experienced and hold all requisite licences and authorisations necessary to conduct the Services; (b) shall be performed in compliance with all policies and procedures of the Purchaser (as are applicable to the provision of the Services and notified to the Supplier from time to time); and (c) shall be provided with due care and skill, with the same or higher level of care and skill as would reasonably be expected of a person qualified and experienced in the supply of the same or similar Services, taking all necessary care to avoid Loss or damage.
9. INTELLECTUAL PROPERTY RIGHTS
(a) The Supplier warrants that the Goods and Services, and the Purchaser’s reasonably foreseeable use of them will not infringe the Intellectual Property Rights of any person. The Supplier indemnifies the Purchaser against breach of this warranty. (b) The Purchaser will own all Intellectual Property Rights arising from performance of the Services. The Supplier assigns such rights to the Purchaser and agrees to execute any document reasonably required by the Purchaser to evidence or perfect such ownership. (c) The Supplier grants the Purchaser a licence of all Intellectual Property Rights owned by the Supplier and not assigned under clause 9(b) to enable it to use, modify, maintain and repair the Goods and enjoy the benefit of the Services.
The Supplier must ensure that its Representatives keep confidential all information supplied by the Purchaser or relating to this Agreement (Information), and not use or disclose that information except to fulfill its obligations under this Agreement. The Information supplied remains the property of the Purchaser and the Supplier must not disclose the Information without prior written consent of the Purchaser. This clause does not apply to Information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by Representatives of the Supplier who have not been exposed to the Information.
11. WORK ON THE PURCHASER’S PREMISES
If any Services are to be performed on the Purchaser’s premises, the Supplier must comply with all applicable Laws and all of the Purchaser’s then current policies and procedures (as notified to the Supplier) including, without limitation, the Purchaser’s then current safety and other applicable policies (as notified to the Supplier). The Supplier shall provide the Purchaser with a complete list of all chemicals, hazardous materials, and ingredients in the composition of goods used in the performance of the Services and a copy of the material safety data sheet for such chemicals and hazardous materials. The submission of such list by the Supplier shall not relieve the Supplier of exclusive responsibility for the safe transportation, use, storage and disposal of such materials prior to acceptance by the Purchaser. All chemicals and hazardous materials brought by the Supplier to the Purchaser’s premises shall bear a label stating the identity of the chemical of material and the hazards associated therewith.
12. INDEMNITY AND RELEASE
The Supplier indemnifies the Purchaser, its affiliated companies, and their Representatives, successors, and assigns and holds them harmless from and against any and all claims, suits, actions, liabilities, Loss, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with: (a) the acts, negligence, omissions or wilful misconduct of the Supplier; (b) the Goods or Services supplied; (c) a breach of any of the Supplier’s warranties or any other term of the Agreement; (d) the Supplier’s negligent, unauthorised or wrongful acts or omissions with regards to the use or installations of hazardous materials; (e) a claim that any Goods or Services supplied to the Purchaser infringe upon or misappropriate the Intellectual Property Rights of another person; or (f) a claim of any lien, security interest or other encumbrance made by a third party. The indemnity in this clause is reduced to the extent that the Purchaser has caused or contributed to such claims, suits, actions, liabilities, Loss, judgments or damages.
13. TERM AND TERMINATION
This Agreement shall commence and end on the dates specified in the Purchase Order unless otherwise terminated earlier in accordance with the remainder of this clause 14. Clauses 11, 14.2 and 18 survive termination of the Agreement.
13.2 Without cause
The Purchaser may, at any time on the provision of reasonable written notice, terminate the Purchase Order, in whole or in part, without cause, upon written notice to the Supplier. Following receipt of such notice by the Supplier, the Supplier shall, to the extent specified by the Purchaser, stop all work on the Purchase Order, and cause its suppliers and subcontractors to stop work. If the Purchaser terminates the Purchase Order under this clause, the Supplier will be entitled to claim, by written notice to the Purchaser, any non-recoverable costs that the Supplier properly and directly incurred prior to the date of termination for the purpose of fulfilling the Purchase Order. For the avoidance of doubt, such costs will not include anticipated profits for undelivered Goods or unperformed Services.
13.3 With cause
The Purchaser may terminate the Purchase Order immediately, in whole or in part, if the Supplier: (a) fails to make delivery of the Goods or perform the Services within the time specified in that Purchase Order; (b) fails to replace defective Goods or Services in accordance with these Conditions; (c) breaches a term of the Agreement that cannot be remedied, or for a breach capable of remedy, fails to remedy said breach within 14 days written notice by the Purchaser; or (d) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit or creditors.
14. THE PURCHASER’S PROPERTY
All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by the Purchaser, shall be the Purchaser’s exclusive property, and shall be used by the Supplier only in performance of the Purchase Order. Such property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon the Purchaser’s request, shall be returned to the Purchaser in good condition, normal wear and tear accepted.
15. SUBCONTRACTING, ASSIGNMENT AND ADVERTISING
The Supplier must obtain the Purchaser’s written consent before it: (a) subcontracts any obligation under the Agreement; or (b) assigns, charges or encumbers this Agreement or any rights under this Agreement; or (c) advertises or publishes anything concerning the Agreement.
During the period of the Agreement, while the Supplier has the risk in the Goods and unless or until the Purchaser takes delivery and risk and title in the Goods, the Supplier must, at its own expense: (a) maintain appropriate insurance in relation to public liability and product liability with a reputable insurer for at least $20,000,000; (b) maintain appropriate insurance in relation to professional indemnity with a reputable insurer for at least $5,000,000; (c) maintain workers’ compensation in accordance with applicable legislation; and (d) insure the Goods and/or Services with a reputable insurer for their full replacement cost. The Supplier must, upon the Purchaser’s request, provide the Purchaser with certificates of currency with respect to these insurance policies.
17. RECOVERY OF MONIES
Any debt due from or moneys payable by the Supplier to the Purchaser whether under this Agreement or otherwise may be deducted by the Purchaser from any moneys due or to become due to the Supplier under this Agreement. The Purchaser is entitled to recover from the Supplier any balance that remains owing after deduction.
(a) Without affecting the rights of the Purchaser or of the Supplier at law or under any relevant or applicable statute, any dispute in connection with this Agreement must be resolved, at first instance, by discussion between a Representative nominated by the Purchaser and a Representative nominated by the Supplier. (b) If the Representatives fail to resolve the dispute, the dispute shall be referred to mediation. The mediator and the process will be agreed upon by the Supplier and the Purchaser. (c) Notwithstanding the existence of a dispute, the Supplier must continue to perform its obligations under this Agreement.
The Supplier is an independent contractor of the Purchaser. Nothing in these Conditions constitutes any other type of relationship between the parties.
A waiver by either party: (a) in respect of a breach of a provision of the Agreement by the other party will not constitute a waiver in respect of any other breach of that or any other provision; and (b) is not effective unless it is in writing, and only relates to the specific purpose for which it is given.
21. NO LIMITATION OF STATUTORY RIGHTS AND SEVERANCE
Nothing in this Agreement has the effect of or is taken to have the effect of excluding, restricting or modifying the provisions of any relevant or applicable statute. If it is determined that a word, phrase, sentence, paragraph or clause is unenforceable, illegal or void, then it is severed and the other provisions of this Agreement remain operative.
22.1 Variation The Purchaser may, prior to delivery of Goods or performance of the Services, direct the Supplier in writing to add, omit, amend, supplement or replace any Purchase Order Specification or these Conditions. The Supplier must, within 7 days of such direction, advise the Purchaser in writing if it accepts the variation to the Purchase Order. If the Supplier rejects the variation or fails to advise the Purchaser with the specified period, the Purchase Order shall be terminated unless otherwise agreed between the parties.
Where a direction for a variation would result in variation to the Price, the Supplier must immediately advise the Purchaser in writing of the varied Price (which must be determined by the same method of pricing for the provision of the original Goods and/or Services). A variation to the Price is not effective unless it is communicated to the Purchaser in writing and signed by the Purchaser.
If, in the opinion of the Supplier, a direction for a variation is likely to prevent the Supplier from meeting its obligations under the Agreement, it must immediately notify the Purchaser. The Purchaser will decide whether the variation will take effect and notify the Supplier of its decision in writing and may, in its discretion, modify the Agreement to the extent required to enable the Supplier to deliver the variation.
24. GOVERNING LAW
The law of the State of Victoria, Australia governs this Agreement. The parties irrevocably submit to the non exclusive jurisdiction of the courts of the State of Victoria.