Standard Terms and Conditions for Purchasing
1.1 These are the terms and conditions referred to in the purchase order.
When the terms and conditions apply
1.2 These standard terms and conditions (standard conditions) apply to any contract entered into by Killard Excavation Pty Ltd issuing a purchase order to the nominated supplier (the supplier), whether as an offer or acceptance of an offer (the contract), where that purchase order refers to the Killard standard terms and conditions.
2.1 In these standard conditions:
Company means the Killard Excavation Pty Limited entity named in the Purchase Order.
Contractor means the party identified as such in the Purchase Order.
Defective means Goods and/or Services (or any aspect of them) which are not in accordance with the Purchase Order or which are damaged, deficient, faulty, inadequate, or incomplete.
Delivery address means the place for delivery specified on the Purchase Order.
Delivery date means the delivery date specified on the Purchase Order.
Goods means the item(s) to be supplied by the supplier set out in the Purchase Order, if any.
GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999.
HECS means health, safety, environment, and community.
a) Commonwealth, State and Local government legislation including regulations, by-laws, orders, awards and proclamations;
b) common law and equity;
c) Authority requirements and consents, certificates, licenses, permits, and approvals (including conditions in respect of those consents, certificates, licenses, and approvals); and
d) guidelines of Authorities with which the Contractor is legally required to comply.
Services means the service to be provided by the Supplier set out in the Purchase Order, if any.
Standard terms means these standard terms and conditions of contract for purchase of Supplies.
Supplier means the party who is to provide Supplies to company pursuant to the Contract.
Supply means the Goods to be supplied or the Services to be performed and the whole of the works to be executed in accordance with this Agreement.
2.2 Headings are not part of these standard conditions.
Conditions to prevail
2.3 Subject to clause 6, these standard conditions will prevail in any conflict between them and the terms of any offer or acceptance by the supplier.
3.1 The contract conditions include any special conditions referred to in the purchase order and if any such special conditions are inconsistant with these standard conditions, the former will, to the exent of this inconsistency, prevail.
4.1 Supplies/Goods must be packed with the minimum of packaging material so as to ensure its safe delivery. Environmentally friendly packaging material shall be used where practicable. Packages must be marked with the Purchase Order number, item number, destination, contents, quantity, date and method of dispatch, and weight of each package.
5.1 The Supplier must deliver the Goods to the shipping address stated in the Purchase Order on the Delivery Date, unless the Supplier is notified otherwise in writing by the Company. Delivery will be done in adherence to all applicable laws and purpose created Safe Work Method. Supplier will be liable for and take full responsibility of the site conditions and any special condition referred to the purchase orders. Supplier will ensure all vehicles, equipment, and personnel associated with the delivery of goods to be licensed, registered, insured, and regulated as per laws and requirements of the State. If it is apparent to the Company that the Delivery Date will not be met, the Supplier must take all necessary corrective action that the company may direct at the Suppliers sole cost and expense.
5.2 Either a delivery docket, packing note, or invoice is to accompany all deliveries made, quoting the purchase order number, quantity dispatched, description of the supplies, and consignment details.
6.1 The goods must be free from defects in materials and workmanship and at least of merchantable quality.
6.2 The Company can inspect the goods at any time and reject those not in accordance with the contract.
6.3 The Company can reject goods after acceptance if they do not comply with the contract.
6.4 The Company is not liable to pay for:
a) rejected goods
b) goods damaged by inspection, or
c)costs associated with inspection or rejection.
6.5 If goods are rejected by the Company the supplier must, without prejudice to the Company's rights:
a) replace or repair , without cost to the Company, the rejected goods, or
b) remove and refund payment of the rejected goods.
6.6 The supplier must comply, at no cost, with all efforts of the Company to inspect the goods.
6.7 The supplier will not manufacture goods in bulk until the Company has approved the purchase order.
6.8 The supplier will make available all documentation associated with special conditions of supply, including handling, installation, storage, use or any other information specific to the Supply. This documentation is to be made known and available to the Company in good time prior to or during delivery of Supply.
Performance of Services
The Contractor must, in supplying the Goods or performing the Services:
7.1 not interfere with the Company's activities or the activities of any other person at the Delivery Address.
7.2 be aware of and comply with and ensure that the Contractor's employees, agents, and contractors are aware of and comply with:
a) all applicable Laws;
b) all Site Standards and Procedures, to the extent that they are applicable to the supply of the Goods or the performance of the Services by the Contractor; and
c) all lawful directions and orders given by the Company's representative or any person authorised by Law to give directions to the Contractor;
7.3 Ensure that the Contractor's employees, agents, and contractors entering the Company's premises perform in a safe manner and are properly qualified for, and skilled in, the performance of their tasks and are of such character as to not prejudice:
a) safe working practices;
b) safety and care of property; and
c) continuity of work;
7.4 Provide all such information and assistance as the Company reasonably requires in connection with any statutory or HECS investigation in connection with the supply of the Goods or the performance of the Services.
7.5 On request by the Company, provide to the Company and its employees, agents, and consultants any information and assistance required to identify, evaluate, implement, and report on any matter required by Law, including;
a) producing written reports;
b) recommending efficiency opportunities;
c) collecting data; and
d) monitoring or metering, in respect of anything used, produced or created in connection with the performance of the Contractor's obligations under this Contract.
8.1 Goods supplied by the Supplier to the Company are at the Company's risk immediately on delivery of the goods to the Company in accordance with this Agreement.
Passing of Ownership
9.1 Ownership of the Goods will pass to the Company upon delivery to and acceptance of the Goods by the Company or payment, whichever is the earlier.
10.1 Notwithstanding any other clause of these terms and conditions, the Supplier is liable for all loss or damage to the Goods at all times occuring prior to acceptance of the Goods by the Company.
11.1 Rectification: The Supplier must promptly correct any defect or fault (and any consequential effects of any defect or fault) that is found to exist in the Goods or arise out of the performance of the Services as at the Delivery Date at its sole cost and expense.
11.2 Defect Liability Period: The Supplier must rectify any defect or fault (and any consequential effects of any defect or fault) found to exist in the Goods or to have arisen out of the performance of the Services or the carrying out of the works, within 12 months (or such other period as may be agreed between the parties in writing) of the Delivery Date at its sole cost and expense.
12.1 Correction: If the Company gives reasonable notice of any defect or omission discovered in the goods during any warranty period, the supplier must correct that defect or omission without delay and at no cost to the Company. Where no warranty is otherwise specified the warranty period shall be 180 days from acceptance by the Company.
12.2 Cost of Warranty: The supplier must meet all costs of, and incidental to, the discharge of warranty obligations, including any packing, freight, disassembly and re-assembly costs.
12.3 Further Warranties: The Supplier represents and warrants to the Company that in performing this Agreement:
a) it will at all times be suitably qualified and experienced, and will exercise due skill, care and diligence;
b) it, and any person performing this Agreement on its behalf, will comply with all laws and this Agreement; and
c) that it is a GST registered entity.
13.1 Price in Purchase Order: The price payable for the Supply is the price set out in the Purchase Order. The price stated in the Purchase Order is firm and fixed, unless varied with the consent of the Company.
13.2 Costs included in price: Unless otherwise stated, the price:
a) is exclusive of GST but includes any other taxes, fees or charges; and
b) includes all costs of all necessary packaging, loading, delivery to the address stated in the Purchase Order, and all testing and certification.
13.3 Partial supply: If the Supplier is unable to deliver or perform the Supply in accordance with the Purchase Order, the Company may accept partial supply and these terms and conditions continue to apply to the goods and servcies delivered or performed.
Invoice and Payment
14.1 Supplier to provide tax invoice: The Supplier must provide a valid tax invoice for each Purchase Order and attach all necessary substantiating documentation. An invoice will be correclty rendered if it is addressed in accordance with the purchase order, identifies the purchase order number, is a tax invoice for GST purposes and is, where explanation is necessary, accompanied by documentation substantiating the amount claimed
14.2 Payment of invoice: Subject to the performance by the supplier of its obligations under this agreement, the company must pay all correct and valid tax invoices within 30 days of the end of month in which the goods are delivered or the services are provided. Unless otherwise stated, all payments must be made in Australian Dollars.
15.1 Supplier indemnities: The Supplier is liable for and indemnifies The Company and its officers, agents, and employees in respect of:
a) any liability which may arise from any defect, inherent or otherwise, in the Supply or any part of the Supply, including but not limited to the replacement of any defective Supply by the Supplier at no cost to The Company;
b) any liability that may arise by reason of a patent, copyright or trade mark claim or by reason of any Claims or penalties for breach of statutory duties of the Supplier relating to the Supply;
c) any loss or damage whatsoever (including legal costs and any necessary payment made in order to settle or compromise any Claim) which they may suffer or incur, directly or indirectly, from any breach of this Agreement by the Supplier or by the Supplier's employees or agents by or any other party acting through or with the Supplier; and
d) any loss or damage or other liability which they may suffer or incur by reason of any personal injury, death, disease or illness (including mental illness) of any person or loss of, or damage to, or loss of use of, any property of any person to the extent caused by the Supplier.
15.2 No consequential loss: The Company will not under any circumstances by liable to the Supplier for any loss of profit or for any loss of a consequential nature whatsoever by the Supplier.
Insurance supplied by supplier
16.1 Unless otherwise specified in the Purchase Order, the Supplier must hold the insurances that a prudent supplier of the Goods or Services would hold, including:
a) insurance to cover physical loss or damage to the Goods;
b) comprehensive third-party, products and public liability insurance of not less than $1 million;
c) workers compensation insurance as required by law; and
d) if Services are to be provided, professional indemnity insurance of not less than $1 million.
If requested by The Company or its representative, the Supplier must provide copies of insurance policies required by this clause to the Company or its representative, together with certificates of currency to The Company.
17.1 Consent required: The supplier must not, without the Company's consent in writing, subcontract the whole or any part of the work of manufacture or provision of the supplies.
17.2 Liability for the subcontractors: The supplier will be liable to the Company for the acts and omissions of any subcontractor as if those were acts or omissions of the supplier.
18.1 The law governing these terms and conditions is the law of the State of New South Wales.
19.1 If the supplier:
a) fails to deliver the goods by the date required by the contract
b) is in breach of any material term of the contract
c) being an individual, commits an act of bankruptcy, becomes a bankrupt, executes a deed of assignment or deed of arrangement under Part 10 of the Bankruptcy Act 1966 as amended or a creditor accepts a composition under that Act or any analogous overseas law.
d) being a corporation (other than for the purpose of a reconstruction or amalgamation):
i) is the subject of a compromise or arrangement with its creditors
ii) in respect of property of which a receiver or a receiver and its manager is appointed
iii) in respect of which a provisional liquidator or liquidator is appointed the Company can, without prejudice to any other rights and remedies it has under the contract or otherwise, terminate the contract in whole or in part by notice in writing to the supplier.
19.2 On such termination the Company can:
a) cease payment under the contract
b) recover from the supplier all sums paid for undelivered goods
c) purchase similar goods from alternative suppliers and claim by way of indemnity from the supplier any loss it may occur in doing so.
Compliance with Commonwealth policies
20.1 The supplier shall, in its dealings with its employees, have due regard to Commonwealth policies on employment, including equal employment opportunity, access and equity, affirmative action, occupational health and safety, and workplace diversity.
21.1 A party's failure or delay to exercise a power or right does not operate as a waiver of the power or right. A waiver is not effective unless it is in writing.
22.1 This contract will only be varied by written agreement between the Company and the supplier. The Company and the supplier shall act reasonably in deciding whether to agree to a variation, as requested by the other party.
Negation of employment, partnership and agency
23.1 This contract does not create a relationship of employment, agency or partnership between the supplier and the Company.