Terms and Conditions of Purchase
All Goods supplied to or Services performed for Simmcal Pty Ltd t/a Northfleet ABN 12 113 203 777 (“the Company”) are based on these terms and conditions, subject only to any written agreement between the Company and the Supplier in addition to or to the contrary.
DEFINITIONS
“Anti-Slavery Laws” means:
- Division 270 and 271 of the Criminal Code Act 1995 (Cth);
- the Modern Slavery Act 2018 (Cth); and
- any other Relevant Law which prohibits exploitation of a worker, human trafficking, slavery, slavery-like behaviour, servitude, forced labour, child labour, debt bondage or deceptive recruiting for labour or services (or similar), and is applicable in the jurisdiction in which the Purchaser and the Supplier are registered or conduct business or in which activities relevant to this Contract are to be performed.
“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, below acceptable standards 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, or a date subsequently notified in writing by the Company to the Supplier.
“Dispute” means a difference or dispute between the parties arising in connection with an invoice or the subject matter or interpretation of these Terms and Conditions.
“Goods” means the goods, if any, described on the Purchase Order.
“GST” has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“HSE” means health, safety, and environment.
“Law” means:
- Commonwealth, State and local government legislation including regulations, by-laws, orders, awards and proclamations;
- common law and equity;
- authority requirements and consents, certificates, licences, permits and approvals (including conditions in respect of those consents, certificates, licences, permits and approvals); and
- guidelines of Authorities with which the Company is legally required to comply.
“Price” means the price set out in the Purchase Order which is exclusive of GST, but is inclusive of all other costs and charges.
“Purchase Order” means the purchase order for Goods and/or Services issued by the Company to the Supplier from time to time containing, amongst other things, a description of the Goods and/or Services.
“Services” means the services, if any, described on the Purchase Order.
“Supplier” means the person or corporation identified on the Company’s Purchase Order as the party agreeing to supply Goods or Services to the Company and includes the Supplier’s officers, employees, agents and contractors in relation to the Goods or Services provided.
“Supplier Reference Document” means a delivery document, dispatch note, timesheet, claim form or such other document which evidences the delivery of Goods or performance of the Services.
“Warranty Period” means the period of 24 months commencing on the date of delivery of the Goods and/or 12 months from the date on which the Services are performed.
SUPPLY OF GOODS AND/OR SERVICES
- In consideration of payment of the Price by the Company, the Supplier must supply to the Company the Goods and/or perform the Services in accordance with the Purchase Order (which includes these Terms and Conditions of Purchase).
- To the extent the Supplier’s terms and conditions are supplied with the 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 Company’s Purchase Order (even if any representative of the Company signs those terms and conditions or annexes the terms and conditions to this Purchase Order).
- The Supplier must, in supplying the Goods or performing the Services:
- ensure that such supply complies with all applicable Anti-Slavery Laws and relevant Company policies, procedures or statements relating to anti-slavery;
- must provide, at its cost, all reasonable assistance (including the provision of information and access to documents, personnel and contractors) that the Company may require to enable the Company to comply with its obligations or those of its Customers under the Anti-Slavery Laws, and Terms and Conditions of Purchase;
- must immediately notify and provide full particulars to the Company upon becoming aware the Supplier has or may have breached clause 3 or that it or any of its personnel or subcontractors have been found guilty by a court of, or have admitted guilt or accepted liability in relation to, a contravention of any Anti-Slavery Laws;
- acknowledges that if it gives a notice to the Company under clause 3(c) or the Company becomes aware or has a reasonable suspicion of any breach this clause 3 or any conduct which may give rise to a breach of this clause 3 (Anti-Slavery breach), the Company may in its absolute discretion do one or more of the following:
- request the Supplier provide all information the Company reasonably requires in relation to the alleged Anti-Slavery breach
- request the Supplier assist the Company with any investigation the Company wishes to conduct into the alleged Anti-Slavery breach;
- direct the Supplier to prepare, document and implement a corrective action plan to address any failure by the Supplier to comply with clause 3, or to mitigate the risk, damage or potential damage arising from the Anti-Slavery breach, including the termination of any relationship between the Supplier and any person involved in the contravention of the Anti-Slavery Laws;
- not interfere with the Company’s activities or the activities of any other person at the Delivery Address;
- be aware of and comply with and ensure that the Supplier’s employees, agents and contractors are aware of and comply with:
- all applicable Laws;
- all the Company standards and procedures, to the extent that they are applicable to the supply of the Goods or the performance of the Services by the Supplier; and
- all lawful directions and orders given by the Company’s representative or any person authorised by Law to give directions to the Supplier;
- ensure that the Supplier’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 not to prejudice:
- safe working practices;
- safety and care of property; and
- continuity of work;
- provide all such information and assistance as the Company reasonably requires in connection with any statutory or HSE investigation in connection with the supply of the Goods or the performance of the Services;
- 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:
- producing written reports;
- recommending efficiency opportunities;
- collecting data; and
- monitoring or metering, in respect of anything used, produced or created in connection with the performance of the Supplier’s obligations under these terms and conditions.
- The Company may direct the Supplier to alter, add or omit all or part of the Goods and/or Services. The Price for such variation will be based on the rates set out in the Purchase Order unless otherwise agreed by the parties.
- The Supplier acknowledges that the Company relies on the expertise of the Supplier in regards to the supply of the Goods and/or provision of the Services, and the Supplier will advise the Company in the event of any inconsistency on the Company’s Purchase Order pertaining to the Goods or Services ordered.
QUALITY
- The Goods and/or Services must match the description referred to in the Purchase Order.
- If the Supplier gave the Company a sample of the Goods or a demonstration of the Services, the Goods and/or Services must be of the same nature and quality as the sample or demonstration given.
- The Goods and/or Services must be fit for the purpose for which goods and/or services of the same kind are commonly supplied or bought and for any other purpose the Company specifies.
- The Goods must be of merchantable quality and, unless otherwise specified in the Purchase Order, must be new.
- The Services must be performed in a thorough, professional and competent manner using the standard of care, skill and diligence that would reasonably be expected from an experienced provider of similar services and expertise in Australia.
- Any changes to the standard specifications of the Goods including but not limited to content, ingredients, quantities, components and materials must be notified the Company as soon as they are been altered. The Company reserves the right to return the Goods to the Supplier and to seek compensation should a change to Goods specifications not notified result in immediate or future financial loss and/or reputational damage to the Company.
DELIVERY/PERFORMANCE AND ACCEPTANCE
- Time shall always be of the essence in respect to the delivery of the Goods or performance of the Services. The Company may in its absolute discretion extend the delivery time. Unless the Company has agreed in writing to an extended delivery time the Supplier shall pay to the Company any damages or excess costs caused by failure to deliver on time, including any incidental or consequential damages caused by the Supplier which shall include any damages required to be paid by the Company to any other person due to the failure of the Supplier to deliver on time in accordance with this agreement.
- Except where specifically provided, the Supplier shall insure all of the Goods, the subject of the Purchase Order whilst in transit to the destination required by the Company and ensure that the Goods are suitably packed to avoid damage in transit or storage.
- The Supplier acknowledges that the Goods or Services supplied pursuant to the Purchase Order are supplied on a fixed price basis, inclusive of all costs incurred by the Supplier in the supply of the Goods and/or performance of the Services including all charges for packing, insurance and delivery of the Goods and the cost of any items used or supplied in the performance of the Services.
- The Price is inclusive of all taxes and duties, except GST.
- Where the Company includes an estimate for unknown or variable costs on the Purchase Order (for example labour or freight charges), the Supplier must advise the Company in advance of supplying the Goods or performing the Services that there is expected to be a material difference between the estimated and actual costs.
- Unless otherwise provided, delivery of the Goods shall take place upon acceptance of the Goods by a duly authorised representative of the Company, at which point title in the Goods passes to the Company, and such Goods shall be at the sole and absolute risk of the Supplier until delivery is so acknowledged by a duly authorised representative of the Company.
- The Company acknowledges no liability for payment for any Goods or Services supplied unless the Supplier can produce to the Company a delivery receipt, signed by an authorised representative of the Company. The signing of any delivery receipt on behalf of the Company shall not amount to an acceptance of the quality or quantity of the Goods supplied or Services performed by the Supplier.
- The Supplier warrants that the Goods are free of mortgage, charge, lien or encumbrances whatsoever whereby the Company could or might be liable to be dispossessed of the same. The Supplier warrants that no patent, trade mark or copyright has been infringed in the manufacture or supply of the Goods or Services or any of them.
- If requested, the Supplier shall provide by the date or dates specified all drawings, technical data and operating and maintenance manuals with and as part of the Goods or Services so supplied. The Company may withhold all moneys due or owing in respect of the Goods or Services until compliance by the Supplier with the requirements of this clause.
- The Company, whether prior to or after the incorporation into any works of any Goods which in the opinion of the Company are not of merchantable quality or fit for the purpose for which they were purchased, may notify the Supplier of that opinion and within seven (7) days of such notice the Supplier shall collect the Goods at its own cost and issue the Company with a credit for the price of those Goods.
- Should the Supplier, its servants or agents, enter upon any premises which the Company has a right to enter in order to supply, collect or in any way attend to the Goods or Services the subject of the Purchase Order, the Supplier shall indemnify the Company and hold it harmless at all times against all liability, claims and demands on account of personal injuries, including death, or loss of property or damage caused by the negligent or wilful act or omission of the Supplier, its servants or agents and the Supplier at its own expense shall defend any and all actions based thereon including payment of all legal costs and other expenses thereof.
INVOICING
- Upon delivery of the Goods and/or completion of the Services, the Supplier must provide to the Company a GST compliant tax invoice.
- A Supplier Reference Document and any tax invoice must include the following information:
- a reference to the Purchase Order;
- a detailed description of the delivered Goods or performed Services, including the date of delivery and/or performance of Services in respect of which the Supplier Reference Document or tax invoice relates, and the relevant quantity;
- an individual reference number for the Company to quote with remittance of payment;
- the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order;
- the amount of any applicable GST; and
- the Company operation, site and contact name;If the Company requests, the Supplier must provide the Company with all relevant records to calculate and verify the amount set out in any Supplier Reference Document or tax invoice.
- The Company is not obliged to pay any invoice or part of the invoice that has not been submitted in accordance with these Terms and Conditions (including but not limited to invoices submitted without a Purchase Order number) or which relates to Goods or Services that have not been accepted by the Company and are the subject of a Dispute or are Defective and may withhold approval and/or money due to the Supplier.
- Subject to clauses 19(c) and 19(d), the Company will pay all tax invoices that comply with clause 19(a) forty five (45) days from the end of the month of the invoice date, except where the Company disputes the Supplier Reference Document or tax invoice, in which case:
- the Company may withhold payment pending resolution of the Dispute; and
- if the resolution of the Dispute determines that the Company must pay an amount to the Supplier, the Company must pay that amount upon resolution of that Dispute.
- the Company may reduce any payment due to the Supplier by any amount which the Supplier owes to the Company, including costs, charges, damages and expenses and any debts owed by the Supplier to the Company on any account whatsoever. This does not limit the Company’s right to recover those amounts in other ways.
- A Supplier Reference Document and any tax invoice must include the following information:
WARRANTY PERIOD
- If during the Warranty Period, any of the Goods or Services are found to be Defective, the Company may:
- return the Defective Goods to the Supplier;
- reject the Defective Services;
- repair or make good the Defective Goods; or
- re-perform or make good the Defective Services.The Supplier must:
- repair or replace the Defective Goods;
- re-perform or make good the Defective Services; or
- reimburse the Company for any expenses incurred in repairing, re-performing or making good (as the case may be) any Defective Goods or Services,at the Supplier’s cost, if requested to do so by the Company.
- Unless otherwise specifically provided, the Supplier warrants that the Goods or Services the subject of the Purchase Order will conform to the requirements of the Purchase Order during the Warranty Period and the Supplier shall promptly correct, at no cost to the Company, any defects occurring within that period.
INTELLECTUAL PROPERTY
- If the Supplier is manufacturing or procuring the manufacture of the Goods and the Goods are required to be manufactured or fabricated to the Company’s specifications or special requirements (and are not goods of the type ordinarily manufactured by the Supplier or the Supplier’s sub-contractors) the Company will own all intellectual property rights of any kind that arise as a result of, or in the course of, the design or manufacture of the Goods.
- If the Services are required to be performed to the Company’s specifications or special requirements the Company will own all intellectual property rights of any kind that arise as a result of, or in the course of, the performance of the Services.
- The Supplier will do all necessary acts to give effect to the Company’s rights under clauses 22 and 23.
- The Supplier warrants that the supply of the Goods or Services to the Company, the use of the Goods by the Company or any resale or hiring out of the Goods by the Company will not infringe the intellectual property rights of any person and the Company will not have to pay any licence fee, royalty or other amount to any person in connection with the Goods or Services.
OTHER
- Either party may terminate a Purchase Order in its absolute discretion by giving the other party 7 days’ notice in writing prior to the Delivery Date. In such case no Price will be payable by the Company. Termination of the Purchase Order pursuant to this clause shall be without prejudice to the rights of either party which accrued before termination.
- The Supplier hereby indemnifies and holds harmless the Company, its servants, agents, invitees or licensees against all loss, liability, damage, costs, actions, demands and suits of whatsoever kind or nature arising out of:
- any claim for injury to or death of any person caused in whole or in part by any act or omission whatsoever of the Supplier whilst executing the Purchase Order or making a delivery hereunder.
- any claim with respect to any of the Goods or Services arising out of any latent or inherent defect in any of the Goods or Services.
- any claim for accidental damage, loss, death or injury sustained by any person caused in whole or in part by any act or omission of the Supplier, its servants or agents whilst executing the Purchase Order or making a delivery hereunder, and
- any litigation or arbitration resulting from any claim referred to above.
- The Supplier must remedy any environmental damage or degradation resulting from the Supplier’s actions or omissions.
- The Supplier shall not assign either wholly or in part the Purchase Order without first obtaining the permission of the Company in writing, such permission not to be withheld unreasonably. The Supplier’s obligations are not lessened or otherwise affected by any assignment and the terms of any assignment must be consistent with these Terms and Conditions of Purchase.
- If any provision or part of any provision of these Terms and Conditions is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of the Terms and Conditions.
- The Company agrees that it will deal with all personal information provided by the Supplier in accordance with its legal obligations.
- Except where specifically provided, the Supplier shall insure all of the Goods, the subject of the Purchase Order whilst in transit to the destination required by the Company.
- Waiver by the Company of any specific default or defaults by the Supplier or failure by the Company to cancel the Purchase Order or any part thereof when a right of cancellation arises, shall not constitute a waiver by the Company of its rights under any of the terms or conditions of the Purchase Order arising out of any further default by the Supplier.
- The application of Part 1F of the Civil Liability Act 2002 (WA) is expressly excluded from this agreement.
- This agreement is governed by and is to be construed according to the laws of Western Australia. The Supplier shall submit unconditionally to the non-exclusive jurisdiction of the courts of Western Australia and courts with jurisdiction to hear appeals therefrom.
- The Company and the Supplier agree to act in good faith at all times in relation to any Goods supplied or Services provided by the Supplier.