1. Definitions
Unless a negotiated supply agreement or supply contract exists between Purchaser and Supplier, these standard terms and conditions shall apply to all purchases made by Purchaser. In these terms and conditions unless a contrary intention is expressed:
Goods shall mean all items, consumables, materials, plant, equipment or services ordered by Purchaser in accordance with this Order;
Order shall mean the purchase order issued by Purchaser to Supplier for the supply of the Goods including these terms and conditions;
Purchaser shall mean Anglican Community Services (“ACS”), ABN 39 922 848 563;
Supplier shall mean that party, person, firm, partnership or company (howsoever constituted) from whom the Goods described in the Order have been requested.
2. Validity of Order
This Order, when properly authorised and bearing an Order number is the only form which will be recognised by Purchaser as authority for charging the Goods to its account and to the extent permitted by law constitutes the entire agreement between the parties and supersedes all previous communications and negotiations. This Order constitutes the entire terms applicable to the Goods and may not be modified except in writing signed by Purchaser. These terms shall apply to the exclusion of any conditions of sale appearing on any document of Supplier.
3. Order Acknowledgement and Delivery
(a) Supplier shall send Purchaser a written acknowledgement of the Order within two business days of receipt of the Order. Supplier shall notify Purchaser in writing of any errors or inaccuracies in the Order within the same time.
(b) The delivery of the Goods must be made strictly in accordance with this Order and, in particular, within any time and/or method and to such place as Purchaser may nominate. Unless otherwise agreed, Purchaser will not accept part delivery of the Goods.
(c) If any of the Goods or part of the Goods are delivered in excess of the quantity ordered by Purchaser, Purchaser shall be not be bound to pay for the excess and shall be entitled to return the excess to Supplier at Supplier’s expense.
(d) If Supplier does not deliver the Goods or any of the Goods by the delivery date, without prejudice to any other rights it may have,
Purchaser shall be entitled to, without incurring any costs or expenses whatsoever from Supplier:
(i) Cancel the Order in whole or in part,
(ii) Refuse to accept delivery or subsequent delivery,
(iii) Claim damages for expenses, costs, losses incurred by Purchaser directly due to the late delivery,
(iv) Recover from Supplier the additional expenses incurred by Purchaser for purchasing the Goods from an alternative source.
(e) Where Purchaser agrees to accept part delivery or delivery by instalments, Purchaser shall be entitled to treat the Order as repudiated if any part delivery or delivery instalment does not meet the required delivery date.
(f) Supplier shall provide a delivery docket for each delivery, noting Purchaser’s Order number, number of packages and contents, and if part delivery, any outstanding balance.
(g) Signed delivery dockets shall not mean acceptance by Purchaser of the Goods or any of the Goods delivered but only delivery made. Purchaser shall not be deemed to have accepted the Goods or any of the Goods until Purchaser has had ten working days to complete its inspection after delivery made.
(h) Where the Goods are required to be installed and/or tested and/or commissioned, delivery shall not be regarded as having been made until the Goods are fully installed and/or tested and/or commissioned, providing this is done as soon as reasonably practical following receipt of the Goods.
(i) Where the Goods are to be put in place or installed by Supplier, Supplier shall provide all works and materials necessary to carry out such put-in-place or installation, including subsequent clean up and disposal of packaging. All works carried out by Supplier will be completed in a proper and workmanlike manner and Supplier will exercise all due care while on Purchaser’s premises.
4. Title and Risk
(a) Supplier warrants full and unrestricted title for all Goods supplied under the Order and that the Goods are free from any lien or encumbrance whatsoever.
(b) Goods are at Supplier’s risk until delivery is made in accordance with the Order.
(c) Without prejudice to Purchaser’s right to reject the Goods, title shall pass to Purchaser upon delivery of the Goods, provided that, if the Goods are non-conforming or defective, Supplier shall bear the risk of loss as to the Goods until the defect is remedied by the Supplier.
(d) Supplier agrees to indemnify and hold harmless Purchaser against any claims from any third parties against Supplier affecting directly or indirectly the Goods, provided that the indemnity shall be reduced proportionally to the extent that any negligent act or omission of Purchaser, its consultants, agents or other contractors contributed to the claim.
5. Defective Goods and Remedies
(a) All Goods ordered are subject to final inspection and acceptance by Purchaser. In the event that the Goods or any of the Goods fail, in Purchaser's reasonable opinion, to conform to Supplier's obligations in accordance with the Order then Purchaser may reject the Goods. Purchaser shall be entitled to a refund of the purchase price together with an amount to cover Purchaser's reasonable inspection, handling, transportation and other reasonable charges or expenses.
(b) Where Purchaser rejects Goods which are already installed, Supplier shall immediately upon written direction, remove the defective Goods, replace same and make good any damage to other property occasioned in such removal to the satisfaction of and at no cost to Purchaser. If Supplier fails to take corrective action within five business days of Purchaser’s notification, Purchaser shall have the right to, at the expense of Supplier, remove and replace or repair the defective Goods.
(c) Acceptance of or payment for all or any part of the Goods shall not be deemed to be a waiver on the part of Purchaser of it's contractual, statutory or other rights in respect of the Goods.
6. Price and Payment
(a) The purchase price stated in the Order shall be firm and fixed and inclusive of all charges, including freight and insurance and GST and any other taxes, duties or imposts imposed by any relevant authority in connection with this Order.
(b) Unless otherwise agreed in writing by Purchaser, payment terms are 30 days from the end of the month in which Supplier’s correctly rendered tax invoice has been received.
(c) Supplier acknowledges that Purchaser is entitled to exercise a right of set off to the extent Supplier is indebted to Purchaser against any monies due by Purchaser to Supplier on this or any other account.
7. Invoices
(a) All invoices or commercial documents shall bear a valid Order number.
(b) Invoices that do not bear a valid Order number may be returned to Supplier and/or may delay payment.
(c) All invoices shall be submitted to [email protected]
8. Warranties
Supplier warrants that the Goods will:
(a) be fit for their intended purpose;
(b) comply with the requirements of all relevant standards in Australia and with any other contractual obligation of Purchaser to a third party (as disclosed to Supplier by Purchaser);
(c) conform with all specifications, drawings, samples or other descriptions furnished by Purchaser to Supplier from time to time; and
(d) be free from any defects in design, manufacturing, materials and workmanship for a minimum period of two years from the date of delivery or installation or commissioning or practical completion, whichever is later.
9. Insurances
Supplier shall hold and maintain all necessary insurances, including Workers’ Compensation insurance as required by law; public and products liability insurance in respect of the Goods for a minimum amount of AU$10 million respectively unless otherwise specified in the Order; and any other insurances as specified in the Order. Upon request, Supplier shall provide certificates of currency to Purchaser.
10. Indemnity
Supplier indemnifies Purchaser against any loss (including consequential and indirect loss), damage, liability or claim, whether arising under contract, common law, in equity or under any statute, which Purchaser suffers or incurs arising out of:
(i) any breach of this Order by Supplier; and
(ii) any injury or death to any person or damage to any property in any way connected with the performance of the Order or the Goods supplied by the Supplier, provided that the indemnity shall be reduced proportionally to the extent that any breach of this Order or any negligent act or omission of Purchaser, its consultants, agents or other contractors contributed to the loss, damage, liability or claim.
11. Cancellation
(a) Either party shall have the right in its absolute and sole discretion to cancel this Order in whole or in part at any time and for any reason, by providing to the other party at least 5 business days’ notice prior to the delivery date stated in the Order.
(b) If Supplier:
(i) is in default of any provisions of this Order and such default is not rectified within 7 days of receipt of notice from Purchaser to rectify such default; or
(ii) is adjudged bankrupt, its assets are liquidated or if it makes a general assignment for the benefit of its creditors; or
(iii) has a receiver, liquidator, administrator or other controller of property appointed to Supplier on account of its solvency or ability to pay its debts as they fall due, Purchaser shall have the right to, without prejudice to any other rights or remedies it may have hereunder, cancel this Order on the giving of notice, forfeit any retention, take possession of any premises, materials, tools and appliances and finish the work by whatever means it may deem expedient.
(c) If this Order is cancelled pursuant to subclause (a), provided the Supplier is not otherwise in breach of this Order, Purchaser shall be liable to pay Supplier for work completed up to and including the date this Order is cancelled, including any reasonable costs incurred by the Supplier prior to the date of cancellation.
(d) If this Order is cancelled pursuant to subclause (b), the parties’ remedies, rights and liabilities shall be the same as they would have been under the law governing the Order if the party receiving the notice of cancellation had repudiated the Order and the other party elected to treat the Order as at an end and recover damages. If the unpaid balance of the purchase price exceeds the expense of finishing the work then such excess shall be paid forthwith by Supplier and/or deducted as the case may be to Supplier's account.
12. Manuals and Documentation
Supplier shall provide to Purchaser necessary operating instructions, maintenance manuals, drawings, software protocol (where applicable) to enable Purchaser to use, operate and maintain the Goods.
13. Intellectual Property
(a) Supplier warrants any design, materials, documents, patents, trademarks or data connected directly or indirectly to the Goods will not infringe any copyright or any other protected right. Supplier agrees to indemnify and forever hold harmless Purchaser against any actions arising from any breach of this warranty.
(b) Ownership of any design, materials and documents, patents, trademarks or data in relation to this Order vests in Purchaser.
However, Purchaser grants Supplier an irrevocable non-exclusive license to use, reproduce, adopt, create, modify, correct, develop, or sub-license the Intellectual Property solely for the purposes of fulfilling the Order.
14. Confidentiality
Supplier agrees to maintain in strict confidence all “Confidential Information” provided by and/or obtained from Purchaser. “Confidential Information” means all information to which Supplier has accessed including but not limited to all specifications, commercial and/or technical know-how and data, software, marketing and client/customer data and other business information. Supplier shall restrict disclosure of such information to a need to know basis for the purpose of discharging its obligations to Purchaser. Supplier shall ensure that its employees, agents and subcontractors are aware of and comply with the confidentiality obligations.
15. Assignment
This Order cannot be assigned, transferred, by either party or any part subcontracted by Supplier without the prior written agreement of the parties, each acting reasonably.
16. Governing Law
This Order is governed by and must be interpreted in accordance with the laws of New South Wales, Australia. The parties hereby submit unconditionally to the non-exclusive jurisdiction of the courts of that State.
17. Safety of Persons, Property & Environment
Supplier shall perform its obligations safely so as to protect persons and property and the environment. Supplier shall comply with all applicable workplace, health and safety acts and regulations and amending instruments and the Purchaser’s Contractor Induction guidelines and responsibilities. Supplier shall maintain current National Criminal History Records check certificates, where applicable and/or required by laws.
18. Miscellaneous
(a) The Goods are for the use of or re-sale by Purchaser and may be incorporated in any Goods. In no event shall any claim for royalties or other additional compensation be made by Supplier by reason of such use, re-sale or manufacture.
(b) The fact that Purchaser fails to do or delays in doing something it is entitled to do under the Order, does not amount to a waiver of its right to do it.
(c) If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these Terms and Conditions of Purchase Order, but the rest of the Order is not affected.
(d) Neither party shall be liable for any failure to fulfill or any delay in fulfilling any obligation arising from the Order if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw. materials or fuel, fire or explosion, any government action or any other cause beyond the reasonable control of that party and not a consequence of that party’s own negligence.
(e) Supplier shall at all times comply with the requirements of all applicable statutes, regulations or standards in the supply of the Goods pursuant to this Order.
(f) The rights and remedies provided in the Order will not affect any other rights or remedies available to Purchaser at law.
(g) In the event of any dispute or differences, the parties shall first attempt to resolve the same between them before proceeding to litigation or arbitration as the case may be. However, this subclause (g) shall not prejudice the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.
(h) Clauses 9, 10, 13 and 14 will survive cancellation of this Order.
