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1.1 Definitions
“Agreement” means the legally binding agreement between the parties formed in accordance with clause 2.1 of these Terms and Conditions and constituted by the documents referred to in clause 2.2.
“Confidential Information” means all information disclosed by a party to the other party for the purposes of this Agreement relating to the operations, business, research or technology of the disclosing party and any information marked or identified by the disclosing party as confidential.
“Goods” means the goods to be provided to the Purchaser by the Supplier under the Purchase Order.
“GST” means the goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 and related legislation.
“Intellectual Property” means all intellectual property, including but not limited to copyright, inventions, patents, rights in designs, circuit layouts and trademarks capable of protection at law.
”Modern Slavery” means any activity, practice or conduct that would constitute an offence in relation to slavery, forced labour, involuntary servitude, debt bondage, human trafficking, and other slavery-like exploitation as prohibited under all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Criminal Code Act 1995 (Cth), sch 1, divisions 270 and 271; the Modern Slavery Act 2018 (Cth).
“Purchase Order” means the completed purchase order form issued by the Purchaser to the Supplier which identifies the Supplier and includes a description and the price of the Goods and or Services and includes the documents referred to in or attached to the Purchase Order.
“Purchaser” means Retire Australia Management Pty Ltd its related entities, agents or related body corporate (as such terms are defined in the Corporations Act 2001 (Cth) that enters into a Purchase Order for the purchase or Goods and or Services with the Supplier.
“RetireAustralia Data” means all data, information, correspondence and records collected or generated for RetireAustralia by the Supplier in connection with the performance of this Purchase Order.
“Services” means the services to be provided to the Purchaser by the Supplier under the Purchase Order.
“Site” The Purchaser’s premises to which the Goods and or Services are required.
“Specification” means any specification applying to the Goods and or Services and referred to in or attached to the Purchase Order.
“Supplier” means the party providing the Goods and or Services identified in the Purchase Order.
“Supplier Data” means all data, information, correspondence and records collected or generated by the Supplier in the course of its operation.
“Terms and Conditions” means these terms and conditions.
“Warranty Period” means the period commencing on the date of supply of any Services or of any Goods to the nominated delivery point and lasting for a period of one year.
1.2 Interpretation
Unless the contrary intention appears in these Terms and Conditions:
2.1 The Supplier is taken to have accepted a Purchase Order if it notifies the Purchaser of its acceptance or at such earlier time as it delivers, or commences to deliver, or perform the Goods and or Services. These Terms and Conditions apply between the parties as a binding agreement from the time of the Supplier’s acceptance and the Supplier agrees to supply the Goods and or perform the Services in accordance with this Agreement.
The first-mentioned provision takes precedence in the order set out in this clause.
2.3 The Supplier represents and warrants that it has carefully examined all documents furnished by the Purchaser and fully satisfied itself regarding all the conditions, risks, contingencies and other circumstances including Site conditions which might affect the supply of the Goods and or performance of the Services.
2.4 No amendment to the Purchase Order will be binding on the parties unless approved in writing by the Purchaser.
2.5 The Supplier must not subcontract or assign all or any part of the Purchase Order without the prior written approval of the Purchaser.
2.6 Where the Supplier subcontracts any of its obligations under this Agreement, the Supplier remains liable for the performance of all its obligations under the Agreement.
3.1 The Supplier must not vary the Purchase Order except as directed and approved by the Purchaser in writing.
3.2 The Purchaser may propose to vary the Purchase Order by notice in writing and the Supplier must use reasonable endeavours to comply with any such request.
3.3 If a variation is directed by the Purchaser, the Supplier must promptly notify to the Purchaser:
3.4 If the parties agree, the Purchase Order may be amended by the Purchaser to reflect the agreed variation including costs and changes to delivery times.
4.1 The Supplier warrants that:
4.2 The Supplier must comply with the standards of quality specified in the Purchase Order, any Specification and comply with any law or regulation applicable to the Goods and or Services.
4.3 If no standards are specified the Supplier must comply with the best quality standards applicable to goods and services of the kind referred to herein as the Goods and or Services.
4.4 The Purchaser may on reasonable notice inspect the Goods prior to delivery and the Supplier must give the Purchaser all reasonable access to premises during business hours to enable such inspection.
4.5 The warranties referred to in clause 4.1 are in addition to any statutory warranties applicable to the Goods and or Services.
4.6 During the Warranty Period the Purchaser may give written notice to the Supplier of any failure or defect in the Goods and or Services.
4.7 The Supplier must promptly correct any defect or failure in the Goods and or Services at no cost to the Purchaser by repair, replacement, modification or other means acceptable to the Purchaser.
4.8 If the Supplier fails to correct any defect or failure of which it has been notified by the Purchaser under clause 4.6 within the time specified in the notice (which will not be unreasonable), the Purchaser has the right to rectify the defect or failure itself or have the rectification undertaken by a third party. All costs incurred will be a debt due and payable by the Supplier to the Purchaser and may be deducted from moneys which may otherwise be payable by the Purchaser to the Supplier.
5.1 Neither party assigns any of its existing Intellectual Property rights to the other party by the supply or receipt of any Goods and or Services under the Agreement.
5.2 The Supplier grants to the Purchaser, or will procure from any third party owner for the benefit of the Purchaser, a permanent, irrevocable, royalty-free, worldwide, non-exclusive licence (including a right to sub-licence) to use, reproduce, modify, publish, adapt or communicate to the public the Intellectual Property in the Goods and or Services so as to enable the Purchaser’s full use of the Goods and or Services.
5.3 The Supplier agrees that any Intellectual Property created in the process of supplying the Goods to the Purchaser under the Purchase Order is vested in and remain the property of the Purchaser.
5.4 If a third party claims, or the Purchaser reasonably believes that a third party is likely to claim, that the use by the Purchaser of all or part of the Goods and or Services infringes its Intellectual Property rights, or breaches its confidences, the Supplier must, in addition to the indemnity under this Agreement and to any other rights that the Purchaser may have against it, promptly at the Supplier’s expense:
6.1 Unless otherwise specified in the Purchase Order, the Goods are to be delivered by the Supplier to the nominated Purchaser address, adequately packaged and protected to ensure safe delivery to the delivery point and by the delivery date specified in the Purchase Order. The Goods are to be accompanied by a delivery document which identifies the Purchase Order’s specific number. Any signature obtained from the Purchaser staff member placed on the delivery document at the point of delivery will represent the Purchaser’s acknowledgement of delivery of the Goods but not acceptance of any terms and conditions of the Supplier contained in the delivery document.
6.2 The Goods will become the property of the Purchaser and risk will pass to the Purchaser upon delivery of the Goods to the Purchaser. Notwithstanding that the Purchaser takes delivery of the Goods or pays any Supplier invoice, the Supplier will for a reasonable period after delivery, be responsible for any loss or damage to the Goods which may have occurred prior to delivery and for any noncompliance of the Goods, at the time of delivery, with the requirements of the Purchase Order.
6.3 The Purchaser may nominate a completion date for the provision of Services. The Supplier must ensure that the delivery of the Services are performed within the nominated timeframes. The Supplier must notify the Purchaser in writing of any delays whether expected or actual.
6.4 If the Supplier becomes aware that a delay in delivery of Goods and or Services may or will occur, it must notify the Purchaser promptly. the Purchaser may in its discretion grant an extension of time to any specified delivery date provided that the delay is due to a cause beyond the reasonable control of the Supplier and further provided that the Supplier satisfies the Purchaser that it has used its best endeavours to prevent or overcome the delay.
6.4 Where the Purchase Order requires the Supplier to supply Goods or provide Services which are or may be hazardous or dangerous to persons or property, the Supplier, must at or before delivery of the Goods or at any relevant time in relation to performance of the Services, provide the Purchaser with relevant and appropriately detailed information and documentation as required under applicable legislation (including that which relates to dangerous goods, health and safety and the environment) and as may otherwise be reasonably required to enable the Purchaser to safely receive, handle, store and use the Goods or receive the Services.
7.1 Except as otherwise stated in the Purchase Order or agreed in writing by the parties, the price payable to the Supplier under the Purchase Order is the GST-inclusive price, is fixed and is not subject to any variation, including but not limited to variations in the cost of labour, material or exchange rates.
7.2 Except as otherwise stated in the Purchase Order or agreed in writing by the parties, the Supplier is responsible for the payment of all freight, package, handling, insurance, taxes, duties and charges payable with respect to the Goods and the Purchase Order price will be deemed to be inclusive of all such costs, taxes, duties and charges.
7.3 Except as otherwise specified in the Purchase Order, the Purchaser is to pay, within 30 days of the end of the month in which the Supplier’s tax invoice is received, the amount which is correctly invoiced provided:
8.1 The Supplier indemnifies the Purchaser against all actions, claims, liabilities, expenses, losses, damages and costs (including but not limited to legal costs) and consequential and indirect losses and damages including those arising out of any third party claim it directly or indirectly sustains or incurs as a result of any reach of this Agreement except to the extent that any negligent act or omission of the Purchaser contributes to the loss or damage.
8.2 The Supplier must:
9.1 The Purchaser may at any time by written notice suspend all or part of the Purchase Order for any reason whatsoever. The Supplier must cease work according to the notice of suspension upon receipt of the notice.
9.2 The Supplier must resume the work under the Purchase Order promptly upon any notice by the Purchaser that the suspension is to cease.
9.3 In the event of a breach by the Supplier of any material term or condition of the Agreement which is not capable of remedy or is not remedied within 7 days of the Purchaser notifying the Supplier of any such breach, the Purchaser may terminate the Purchase Order in whole or part by written notice to the Supplier. For the purposes of this clause 9.3, a failure to perform any obligation by the time stipulated in the Purchase Order is deemed to be a breach of a material term or condition of the Agreement.
9.4 The Purchaser may terminate this Agreement by written notice to the Supplier if the Supplier is or becomes subject to proceedings which may result in the Supplier becoming bankrupt, wound up, under voluntary liquidation or subject to the control of a receiver or receiver and manager.
9.5 Notwithstanding any other provision of this Agreement, the Purchaser may terminate the Purchase Order at any time.
9.6 In the event of suspension under clause 9.1 or termination under clause 9.5 the Supplier will:
9.7 Termination of the Purchase Order will operate to terminate the Agreement, except in relation to the provisions referred to in clause 10.9 which are expressed to survive termination.
10.1 A party may only use the Confidential Information of the other for the purpose of the supply of the Goods and or Services under the Purchase Order. A party must not disclose any Confidential Information to any third party without the prior written consent of the other party.
10.2 Any notice to be given by one party to the other under this Agreement must be in writing and sent to the other party at the address set out in the Purchase Order.
10.3 This Agreement is governed by the laws of the State in which the majority of the Goods and or Services are being delivered to under as set out in the Purchase Order.
10.4 Except where the parties have entered into a written contract of the kind referred to in clause 2.2(a), the Purchase Order and these Terms and Conditions constitute the entire agreement between the parties with respect to its subject matter and supersede all prior agreements and understandings between the parties in connection with it.
10.5 Any provision of this Agreement or a right created under it may not be waived or varied except in writing signed by the party intended to be bound. A failure of a party to exercise a right arising under this Agreement does not constitute a waiver of that right.
10.6 If required to deliver or provide any Goods and or Services within any lands or buildings owned or occupied by the Purchaser, the Supplier must observe and comply with applicable rules, policies and reasonable directions of the Purchaser staff.
10.7 The Supplier acknowledges that by placing an order that it does not imply that the Supplier is the exclusive provider of the Goods and or Services to the Purchaser.
10.8 The Supplier may be required to provide evidence of Police Checks for any person engaged by them, who requires access to the Sites in order to perform the Services.
10.9 The warranties in clause 4.1 and the provisions of clause 5, 8 and 10.1 survive the termination of the Agreement.
11.1 The Supplier
11.2 The Supplier represents and warrants to RetireAustralia that in the event that a fraudulent invoice is processed or paid by RetireAustralia, due to a Data Breach attributed to the Supplier, to the extent permitted by law, the Supplier agrees to accept liability, and indemnify and hold harmless RetireAustralia, for any losses, damages, or expenses incurred as a result, including but not limited to, the amount of the fraudulent invoice and any associated legal costs.
11.3 If the Supplier breaches, or any of its Associated Entities, sub-contractors or suppliers breach this clause:
12.1 The Supplier is to obey all reasonable rules and instructions which are in force within the Sites and must comply with the provisions of all laws and regulations that relate to work health & safety at all times, including during the provision of the Goods and or Services.
12.2 The Supplier is to ensure that any persons engaged by them to deliver the Services undertake Site Inductions.
13.1 A Party may not be responsible for any failure to fulfil any term or condition of the Purchase Order caused by an unforeseen, extraordinary and serious event (not including economic hardship or adverse weather conditions, except for extraordinary weather conditions) not within its control and not caused by its default or error and which it could not reasonably have provided against by exercising due diligence and or applying reasonable additional resources. If such event continues for 30 consecutive days, The Purchaser may terminate the Purchase Order and neither Party may have any further claim against the other, except to the extent that actual delivery has been made under such Purchase Order, where the Purchaser will pay the Supplier a fair value of the delivered Goods and or Services in accordance with this Agreement and as agreed between the Parties. The Party invoking force majeure are, as soon as possible, to notify the other Party in writing.
14.1 The Supplier must: