Purchase Order Terms and Conditions

These are the Purchase Order Terms and Conditions governing, and incorporated into, a PURCHASE ORDER.

1. Definitions and Interpretation

1.1 In this PURCHASE ORDER:

(a) "AFFILIATE" means a person which controls, or is controlled by, or which is controlled by an entity that controls a party, "control" in this context means the ownership directly or indirectly having 50 per cent or more of the shares or voting rights in a person.
(b) "CO-VENTURER" shall mean any other person with whom the PURCHASER is or may be from time to time a party to a joint operating agreement or unitisation agreement or similar agreement.
(c) "DELIVERY DATE" shall mean the date(s) upon which the GOODS shall be delivered and SERVICES are to be provided.
(d) "GOODS" shall mean the materials and/or goods to be provided in accordance with this PURCHASE ORDER.
(e) "GST LAW" has the meaning given to that term in the New Tax System (Goods and Services Tax) Act 1999 (as amended) (CTH) and any regulation made under that Act.
(f) "PURCHASER" shall mean the person named in the PURCHASE ORDER to purchase GOODS, SERVICES or both.
(g) "PURCHASER GROUP" shall mean the PURCHASER, its COVENTURERS, its and their respective AFFILIATES and its and their respective directors, officers and employees (including agency personnel).
(h) "PURCHASE ORDER" shall mean the contract formed by the acceptance of this PURCHASE ORDER and shall incorporate these Purchase Order Terms and Conditions as may be amended by any special conditions referred to in this PURCHASE ORDER.
(i) "SERVICES" means the services to be performed and deliverables to be provided as specified in the PURCHASE ORDER.
(j) "SUPPLIER" shall mean the person named in the PURCHASE ORDER to supply GOODS, SERVICES or both.
(k) "SUPPLIER GROUP' shall mean the SUPPLIER, its subcontractors, its and their AFFILIATES, its and their respective directors, officers and employees (including agency personnel).
(l) "THIRD PARTY" shall mean any party, which is not a member of the PURCHASER GROUP or the SUPPLIER GROUP.
(m) "VENDOR DATA" means all technical, engineering, safety, environmental, and any other data, programs, systems, information or documents forming part of the provision of the GOODS and SERVICES to be supplied by the SUPPLIER.

1.2 Interpretation

Unless the context otherwise requires, words importing the singular shall include the plural and vice versa. Headings are for convenience only and must be ignored in construing this document. References to any person include references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and government. References to any party include references to its respective successors and permitted assigns. The word "include" in any form is not a word of limitation.

1.3 Invalidity and Severability

If any provision of this PURCHASE ORDER is invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of this PURCHASE ORDER and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

2. CONTRACT FORMATION

(a) No other terms or conditions will apply unless they have been expressly agreed to in writing by the PURCHASER.
(b) The PURCHASE ORDER is formed when the SUPPLIER: (i) confirms in writing acceptance of the order; or (ii) provides the GOODS and SERVICES to the PURCHASER.
(c) The PURCHASE ORDER constitutes the entire agreement between the PURCHASER and the SUPPLIER

3. SUPPLIER'S OBLIGATIONS TO THE PURCHASER

3.1 Terms

The SUPPLIER will sell the GOODS and provide the SERVICES to the PURCHASER on the terms set out in the PURCHASE ORDER.

3.2 Delivery

The SUPPLIER will deliver or make the GOODS available at the place specified in the PURCHASE ORDER and provide the SERVICES to the PURCHASER, on the DELIVERY DATE.

3.3 Inclusive Price

(a) The price which the PURCHASER has agreed to pay for the GOODS and SERVICES is set out in the PURCHASE ORDER and is fixed and not subject to rise and fall and exclusive of Australian Goods and Services Tax but includes all other taxes, duties or other charges as applicable.
(b) The SUPPLIER acknowledges and warrants that:

  • (i) it is registered and holds all requisite licences, permits etc, required by law and that are necessary to properly provide the GOODS and SERVICES;
  • (ii) that all work shall be performed in the best and workmanlike manner and acknowledges that the PURCHASER entered into this PURCHASE ORDER relying on the particular skill, competence, experience and ability of the SUPPLIER to provide the GOODS and SERVICES;
  • (iii) the SUPPLIER has sufficient resources of all kinds to maintain efficient and timely provision of the GOODS and SERVICES;
  • (iv) the SUPPLIER has knowledge of all the applicable laws, business practices and standards which must be followed in providing the GOODS and SERVICES and will comply with all applicable laws and standards;
  • (v) all consents and a non-exclusive, irrevocable, royalty-free, transferable, paid up licence for the use of any third party intellectual property has been obtained;
  • (vi) in the case of GOODS, the GOODS:
    • (A) will conform to its description in the PURCHASE ORDER and any applicable specifications and shall be of good merchantable quality, free from defects in material and workmanship and fit for the purpose. This warranty is in addition to and not to the exclusion of any warranty or service guarantee stated in the PURCHASE ORDER or implied by law; and
    • (B) are free and clear of all liens and encumbrances and that SUPPLIER has and will give PURCHASER good and marketable title to same; and
  • (vii) in the case of the provision of SERVICES, the SERVICES will be:
    • (A) performed with the high degree of professional skill, care, competence and diligence expected of a supplier experienced in providing services of the same type as the SERVICES; and
    • (B) suitable to the SUPPLIER's stated purpose and performed in accordance with the PURCHASE ORDER.

3.4 Access

The SUPPLIER will allow the PURCHASER to expedite, inspect and test the GOODS during manufacture at the SUPPLIER's premises on reasonable prior notice. Any expediting, inspection, testing or any failure to do so shall in no way relieve the SUPPLIER of its obligations as specified in the PURCHASE ORDER.

3.5 Specifications

The SUPPLIER will ensure that the GOODS and SERVICES will meet the PURCHASER's requirements with regard to any quality, quantity or specifications.

3.6 Defects Correction

(a) The PURCHASER may reject any GOODS or SERVICES which do not conform to the PURCHASE ORDER. If upon inspection any GOODS or SERVICES are found to be unsatisfactory, defective or of inferior quality or workmanship or fails to meet the specifications or any other requirements of the PURCHASE ORDER ("DEFECTIVE GOODS" or "DEFECTIVE SERVICES", respectively), the PURCHASER may:

  • (i) in the case of GOODS not yet delivered, reject the work;
  • (ii) in the case of GOODS delivered, return such GOODS to the SUPPLIER at the SUPPLIER's expense; and
  • (iii) in the case of SERVICES, reject the SERVICES supplied.

(b) Upon rejection or return of any DEFECTIVE GOODS or DEFECTIVE SERVICES, and without limiting the PURCHASER's rights under this PURCHASE ORDER, the SUPPLIER shall:

  • (i) in the case of GOODS not yet delivered redo the work at no additional cost to the PURCHASER;
  • (ii) in the case of GOODS delivered, reimburse the PURCHASER for any amounts paid by the PURCHASER on account of the purchase price of the DEFECTIVE GOODS, and any cost incurred by the PURCHASER in connection with the delivery or return of such GOODS; and
  • (iii) in the case of SERVICES, re-perform the DEFECTIVE SERVICES, at no cost to the PURCHASER and at a time convenient to the PURCHASER.

(c) If the SUPPLIER fails to remedy any defect or default to the satisfaction of the PURCHASER then the SUPPLIER agrees that the same may be remedied by the PURCHASER at the cost of the SUPPLIER.

3.7 Packing

The SUPPLIER will ensure that the GOODS are properly packed, secured and labelled in accordance with accepted good industry practice and to meet the PURCHASER's requirement as specified in the PURCHASE ORDER.

3.8 Documentation

The SUPPLIER will provide to the PURCHASER by the due date(s) all VENDOR DATA in the specified format and quantities as detailed in the PURCHASE ORDER.

3.9 Hazardous Materials

The SUPPLIER will ensure that the GOODS will comply with the requirements of all applicable law and, to the extent that they contain toxic, corrosive or hazardous materials, the SUPPLIER will ensure that a notice to that effect accompanies each consignment, together with appropriate care and handling instructions. GOODS supplied under the PURCHASE ORDER, which are contaminated beyond use, at the time of delivery, shall be regenerated or disposed of by the SUPPLIER. The title and risk of the contaminated GOODS will remain with the SUPPLIER, who will bear all expenses for the said processes.

3.10 Title and Risk

Title and Risk in the GOODS will pass from the SUPPLIER to the PURCHASER at delivery in accordance with the PURCHASER's requirements under the PURCHASE ORDER.

3.11 Patent Indemnity

The SUPPLIER shall indemnify, defend and hold harmless the PURCHASER GROUP from all claims, losses, damages, costs (including legal costs), expenses, and liabilities of every kind and nature for, or arising out of, any alleged infringement of any patent or proprietary or protected right arising out of or in connection with the performance of the obligations of the SUPPLIER.

3.12 Spares

The SUPPLIER shall give sufficient notice to the PURCHASER of its intention to cease supply of GOODS, component parts or replacements, to enable the PURCHASER to purchase such GOODS, component parts or replacements.

3.13 Safety and Environmental Plans

(a) The SUPPLIER may be requested to provide the PURCHASER with a copy of its Health and Safety and Environmental Management Plans.
(b) The SUPPLIER must, when on the PURCHASER's premises, comply with the PURCHASER's requirements, standards, systems, practices and policies, from time to time.

4. PURCHASER'S OBLIGATIONS TO THE SUPPLIER

4.1 Terms

The PURCHASER will buy the GOODS from the SUPPLIER on the terms set out in this PURCHASE ORDER.

4.2 Acceptance

(a) Acceptance shall be from the time when a duly authorised employee or representative of the PURCHASER accepts the GOODS, delivered or collected, and where such GOODS are not defective or damaged in any way and comply with the PURCHASE ORDER. In the event that a defect in or damage to the GOODS or any breach of the PURCHASE ORDER is identified by the PURCHASER, it shall be deemed not to have accepted the GOODS until such time as such defect, damage or breach is remedied by the SUPPLIER.

(b) Such acceptance shall be without prejudice to the SUPPLIER's liability for any defect in or damage to the GOODS or any breach of the PURCHASE ORDER which is not identified by such duly authorised employee or representative of the PURCHASER at the time of acceptance.

4.3 Risk

The PURCHASER will be responsible for risk of loss or damage to the GOODS with effect from the DELIVERY DATE.

4.4 Price Payment

(a) The PURCHASER will pay for the GOODS against the SUPPLIER's invoice in the amounts specified in the PURCHASE ORDER within thirty (30) days of receipt of the SUPPLIER's proper tax invoice, the receipt not being earlier than the delivery unless otherwise stated in the PURCHASE ORDER.
(b) The PURCHASER may withhold payment in respect of any part of an invoice submitted by the SUPPLIER hereunder, without liability for interest, where the amount in question is the subject of a dispute or difference between the PURCHASER and the SUPPLIER.
(c) The PURCHASER is entitled to set-off against any amounts due to them by the SUPPLIER for any reason.

4.5 Termination for Convenience

The PURCHASER may at any time give written notice to the SUPPLIER to terminate the PURCHASE ORDER forthwith and in such event the PURCHASER shall pay, and the SUPPLIER shall accept in settlement of all claims under the PURCHASE ORDER, such sums as shall reasonably compensate it for all work done and obligations assumed by it in performance of the PURCHASE ORDER prior to its termination and for all work reasonably done by the SUPPLIER in giving effect to such termination. The value of any material, payment for which has been made by the PURCHASER but which is left with, and can be put to use by, the SUPPLIER, shall be taken into account when calculating such losses but such sum shall in no event exceed the price set out in the PURCHASE ORDER unless otherwise previously agreed.

4.6 Status of PURCHASER

The PURCHASER enters into the PURCHASE ORDER for itself and as agent for and on behalf of the other CO-VENTURERS. Without prejudice to the provisions of Clause Error! Reference source not found. and notwithstanding the above:
(a) the SUPPLIER agrees to look only to the PURCHASER for the due performance of the PURCHASE ORDER and nothing contained in the PURCHASE ORDER will impose any liability upon, or entitle the SUPPLIER to commence any proceedings against any CO-VENTURER other than the PURCHASER; and
(b) the PURCHASER is entitled to enforce the PURCHASE ORDER on behalf of all CO-VENTURERS as well as for itself. For that purpose the PURCHASER may commence proceedings in its own name to enforce all obligations and liabilities of the SUPPLIER and to make any claim which any COVENTURER may have against the SUPPLIER.

5. MUTUAL OBLIGATIONS

5.1 Indemnity Arrangements

(a) The SUPPLIER shall be responsible for and shall save, indemnify, defend and hold harmless the PURCHASER GROUP from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:

  • (i) loss of or damage to property of the SUPPLIER GROUP whether owned, hired, leased or otherwise provided by the SUPPLIER GROUP arising from or relating to the PURCHASE ORDER;
  • (ii) personal injury including death or disease to any person employed by the SUPPLIER GROUP arising from or relating to the PURCHASE ORDER; and
  • (iii) subject to any other express provisions of the PURCHASE ORDER, personal injury including death or disease or loss of or damage to the property of any THIRD PARTY to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the SUPPLIER GROUP .

(b) The PURCHASER shall be responsible for and shall save, indemnify, defend and hold harmless the SUPPLIER GROUP from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:

  • (i) loss of or damage to property of the PURCHASER GROUP whether owned, hired, leased or otherwise provided by the PURCHASER GROUP arising from or relating to the PURCHASE ORDER;
  • (ii) personal injury including death or disease to any person employed by the PURCHASER GROUP arising from or relating to the PURCHASE ORDER; and
  • (iii) subject to any other express provisions of the PURCHASE ORDER, personal injury including death or disease or loss of or damage to the property of any THIRD PARTY to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the PURCHASER GROUP.

(c) All exclusions and indemnities given under this Clause 5.1 (save for those under Clauses 5.1(a)(iii), 5.1(b)(iii)) and Clause 5.2 shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply

5.2 Consequential Loss

(a) For the purposes of this Clause 5.2 the expression "Consequential Loss" shall mean: (i) consequential or indirect loss; and (ii) loss and/or deferral of production, loss of product, loss of use, loss of revenue, profit or anticipated profit.
(b) Notwithstanding any provision to the contrary elsewhere in the PURCHASE ORDER, the PURCHASER shall save, indemnify, defend and hold harmless the SUPPLIER GROUP from the PURCHASER GROUP's own Consequential Loss and the SUPPLIER shall save, indemnify, defend and hold harmless the PURCHASER GROUP from the SUPPLIER GROUP's own Consequential Loss, arising from or relating to the PURCHASE ORDER.

5.3 Transfer of PURCHASE ORDER

The SUPPLIER shall not at any time sub-contract or assign any part of its rights or obligations under this PURCHASE ORDER to any other person, without first obtaining the PURCHASER's prior written consent.

5.4 Dispute Resolution

Any dispute or difference whatsoever arising out of or in connection with this PURCHASE ORDER shall be submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules, except that Rule 19 will not apply. There shall be a single arbitrator and any arbitration meetings and proceedings must be held in Perth, Western Australia. Nothing in this clause 5.4 prevents a party from applying to a court at any stage for urgent injunctive relief.

5.5 Cancellation

(a) The SUPPLIER or the PURCHASER may terminate the PURCHASE ORDER in the event that:

  • (i) the other party is in material breach of a condition of the PURCHASE ORDER; or
  • (ii) becomes insolvent or is declared by a court to be insolvent; enters into, or proposes or attempts to enter into, any compromise or arrangement with creditors including bankruptcy; has an order made or a resolution passed (or attempted to be passed) for its winding up; has a receiver or manager, administrator, controller or similar officer appointed; or has a mortgagee take possession of the whole or any part of its property or undertaking.

(b) In such an event, the only remaining commitment will be for the PURCHASER to pay for GOODS already delivered by the SUPPLIER but not yet paid for.

5.6 Proper Law and Language

The PURCHASE ORDER shall be construed and take effect in accordance with Western Australian Law and shall be subject to the exclusive jurisdiction of the Western Australian courts.