Purchase Order Terms and Conditions
Purchase Order Terms & Conditions
SUPPLY OF GOODS AND/OR SERVICES
1.1 In consideration for payment of the Price by the Purchaser, the Vendor must supply to the Purchaser the Goods and/or perform the Services in accordance with the Purchase Order (which incorporates these Terms and Conditions). The Vendor must only supply on an authorised Purchase Order document (as such a Requisition document may not be supplied against as it is not in itself an authorised Purchase Order). 1.2 Purchase orders will be delivered electronically via the preferred electronic method of the Purchaser. 1.3 To the extent the Vendor's terms and conditions are supplied with the Goods or Services (including as printed on consignment notes, invoices or other documents), those terms and conditions will be of no legal effect and will not constitute terms and conditions of the agreement between the Purchaser and the Vendor (even if any representative of the Purchaser signs those terms and conditions or annexes the terms and conditions to a Purchase Order), unless it is expressly agreed between the parties in writing that the Vendor’s terms and conditions will override these Terms and Conditions. 1.4 Where the Purchase Order relates to Goods and/or Services the subject of a specific written contract between the Vendor and the Purchaser in respect of particular Goods and/or Services (Contract), the terms of that contract apply to the extent of any inconsistency with these Terms and Conditions. 1.5 The Vendor must, in supplying the Goods or performing the Services:
- not interfere with the Purchaser's activities or the activities of any other person at the Delivery Address (or any other location specified by the Purchaser for delivery of the Goods and/or Services);
be aware of and comply with and ensure that the Vendor's employees, agents and contractors are aware of and comply with:
- all applicable Laws;
- 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 Vendor; and
- all lawful directions and orders given by the Purchaser's representative or any person having authority over a site or any person authorised by Law to give directions to the Vendor; and
ensure that the Vendor's employees, agents and contractors entering the Purchaser's premises or a Site work in a safe manner and are properly qualified for, and skilled in, the performance of their tasks and are of such character and diligence so as not to prejudice:
- safe working practices;
- safety and care of property; or
- continuity of work.
1.6 The purchase arrangement between the Purchaser and the Vendor is not exclusive and the Purchaser is not required to buy any or all of its requirements for Goods and/or Services from the Vendor under these Terms and Conditions or otherwise. 1.7 The Vendor must immediately notify the Purchaser if at any time it is or may be unable to comply with any aspect of the Purchase Order. 1.8 The Purchaser may cancel any Purchase Order in whole or in part by giving notice to the Vendor at any time prior to the delivery of the Goods and/or Services being cancelled. The Vendor must not deliver cancelled Goods and/or Services or invoice the Purchaser for any costs relating to any cancelled Purchase Order. However, if the Vendor has incurred considerable expense in attempting to fulfil the cancelled Purchase Order, the Vendor may give the Purchaser a notice setting out full details of the costs and promptly after such notice is given the representatives of the parties will meet as soon as possible to discuss those costs and the Purchaser may in its discretion agree to compensate the Vendor for all or some of those costs, on such conditions as the Purchaser considers appropriate, acting reasonably.
2.1 The Vendor must (at its cost, unless agreed in writing with the Purchaser) deliver the Goods to the Delivery Address by the Delivery Date (unless otherwise directed by the Purchaser). 2.2 The Vendor must ensure that the Goods are suitably packed to avoid damage in transit or in storage. 2.3 Packages must be marked with the reference number on the Purchase Order, item number, destination, contents, quantity, date and method of dispatch and weight of each package.
3.1 The Purchaser may, at its option, take delivery of Goods from the Vendor’s Outlets during the Vendor’s normal business hours. 3.2 The Purchaser will inform the Vendor if the Purchaser wishes to take delivery of Goods from Vendor’s Outlets.
All Goods supplied by the Vendor to the Purchaser must comply with the Specifications.
TIME FOR PERFORMANCE
The Vendor must perform the Services by the date specified in the Purchase Order.
TITLE AND RISK
6.1 Title in the Goods passes to the Purchaser upon payment in full of the Price. Notwithstanding this, where the Goods are to be paid for on invoice, the Purchaser is entitled to use or consume the Goods or incorporate them into other goods or products at the discretion of the Purchaser, pending payment for the Goods in accordance with the terms of these Terms and Conditions. 6.2 Risk in the Goods passes to the Purchaser when the Goods are delivered to the Delivery Address and a proof of delivery notice is signed by an authorised person (unless otherwise agreed) or upon removal of the Goods from Vendor’s Outlets by the Purchaser. 6.3 The Vendor will be solely responsible for all risks, costs and expense of supplying and delivering the Goods to the Delivery Address or upon the point of removal of the Goods from the Vendor’s Outlets by the Purchaser.
7.1 The Purchaser must pay the Vendor the agreed Price for the Goods and/or Services. 7.2 The Prices are fixed and firm and may not be increased (except in accordance with the Purchase Order) without the Purchaser’s prior written approval.
8.1 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with these Terms and Conditions are exclusive of GST. 8.2 If GST is imposed on any supply made under or in accordance with these Terms and Conditions, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms and Conditions, subject to receipt of a valid Tax Invoice. 8.3 If these Terms and Conditions require a party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount will be reduced by an amount for which the other party is entitled to any input tax credit. 8.4 Terms used in this clause have the same meanings given to them in the GST Act.
9.1 Upon delivery of the Goods and/or completion of the Services, the Vendor must provide to the Purchaser a valid Tax Invoice, which must include the information set out in clause 9.3. 9.2 Invoices are to be delivered electronically via the Procurement system. Assistance may be provided where available. It is expected Vendor to have pathway to E-commerce and load invoices into the system. 9.3 All Tax Invoices provided to the Purchaser under clause 9.1 must include the following details:
- a reference to the Purchase Order (and only one Purchase Order number per Tax Invoice) and the relevant Contract (if any) including the line item numbers on the Purchase Order and the Contract number (if any);
- a detailed description of the delivered Goods or performed Services, including the date of delivery and/or period of Services and the relevant quantity of Goods;
- an invoice number;
- the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order;
- the Delivery Address for the Goods;
- any outstanding amounts due;
- the amount of any applicable GST;
- contact name and details of the Vendor; and
- such other information as the Purchaser may reasonably require from time to time.
9.4 The Purchaser will pay all invoices given by the Vendor in accordance with this clause 9 within 30 days of the end of the month in which the Tax Invoice is received by the Purchaser, except where the Purchaser disputes the invoice, in which case:
- the Purchaser may withhold payment pending resolution of the dispute (but only to the extent a particular amount is in dispute); and
- if the resolution of the dispute determines that the Purchaser must pay an amount to the Vendor, the Purchaser must pay that amount upon resolution of that dispute.
9.5 The Purchaser may reduce any payment due to the Vendor under this Contract by any amount which the Vendor must pay the Purchaser, including costs, charges, damages and expenses and any debts owed by the Vendor to the Purchaser on any account whatsoever. This does not limit the Purchaser's right to recover those amounts in other ways. 9.6 The Vendor must keep and maintain a true and correct set of records of all materials and information regarding all deliveries of Goods or performance of the Services under these Terms and Conditions and all supporting materials and information used to generate and substantiate amounts claimed for payment under these Terms and Conditions. If the Purchaser requests, the Vendor must provide copies of all relevant records to calculate and verify the amount set out in any Tax Invoice. 9.7 If a Tax Invoice incorrectly states an amount (including the type, quantity or Price of the Goods and/or Services purchased) whether before or after it has been paid, the Vendor must promptly issue an adjustment or a credit note (as applicable) to the Purchaser.
10.1 The Goods and/or Services must match the description referred to in the Purchase Order. 10.2 If the Vendor gave the Purchaser 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. 10.3 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 Purchaser specifies in the Purchase Order. 10.4 The Goods must be of good merchantable quality and, unless otherwise specified in the Purchase Order, must be new. The Goods must be unencumbered (except for any purchase money security interest held by the Vendor). 10.5 The Services must be provided by appropriately qualified personnel with all due care, skill and diligence and in accordance with all applicable professional standards and business practices.
11.1 If, during the Warranty Period, any of the Goods and/or Services are found by the Purchaser to be Defective, the Purchaser may at its option do any one or more of the following:
- return the Detective Goods to the Vendor;
- reject the Defective Services;
- repair or make good the Defective Goods;
- withhold payment not yet made in relation to Defective Goods and/or Services and receive from the Vendor a full refund for any payments made for such Defective Goods and/or Services;
- retain the Defective Goods and claim for any loss or damage which the Purchaser suffers in connection with the Defective Goods; or
- re-perform, have re-performed or make good the Defective Services.
11.2 The Vendor must at the Purchaser’s election:
- repair or replace the Defective Goods;
- re-perform or make good the Defective Services; and
- reimburse the Purchaser for any expenses incurred in repairing, re-performing or making good (as the case may be) any Defective Goods and/or Services, at the Vendor's cost, if requested to do so by the Purchaser.
11.3 In addition to clauses 11.1 and 11.2, the Vendor must assign to the Purchaser the benefit of all trade warranties or manufacturer's warranties applicable to the Goods and provide copies of the warranties to the Purchaser.
RETURNS AND SURPLUS GOODS
12.1 This clause 12 shall apply only when the Purchase Order expressly states that the Purchaser is entitled to return unused or Surplus Goods. 12.2 The Purchaser may, at its option, return to the Vendor any unused or surplus Goods delivered under these Terms and Conditions by giving notice to the Vendor at any time within 3 months of delivery of the Goods (Surplus Goods). If the Purchaser notifies the Vendor of any Surplus Goods, the Purchaser will take reasonable steps to return Surplus Goods to the Vendor for re-stocking in a timely manner so far as it is reasonably practicable to do so. 12.3 The Vendor must:
- accept all Surplus Goods; and
- cooperate with and provide assistance to the Purchaser to receive Surplus Goods from the Purchaser.
12.4 If the Purchaser requests, the Vendor must provide transportation for the Surplus Goods from the Delivery Address or other location nominated by the Purchaser to the Vendor’s facility from which Goods are ordinarily dispatched by road for deliveries to that Delivery Address or place (as applicable). The Purchaser will be responsible for the actual reasonable transportation costs of the Vendor for transporting the Surplus Goods under this clause. 12.5 Where possible, Surplus Goods will be exchanged for other Goods or for a credit to apply against future purchases.
13.1 The Vendor warrants to the Purchaser that:
- it has and will have the right to sell and transfer title to and property in the Goods to the Purchaser;
- it is able to pay its debts as and when they are due and payable and no Goods are liable to a claim by a trustee in bankruptcy or a liquidator;
- it has the necessary experience, skill, knowledge and competence to perform the Services;
- its personnel will similarly possess the necessary experience, skill, knowledge and competence to perform the Services;
- it will carry out all of its obligations under these Terms and Conditions with diligence and expedition;
- the Services and the Goods will be fit for the purpose for which they are ordinarily acquired, or any other purpose notified to the Vendor in writing;
- it is validly existing under the Laws of its place of incorporation or registration;
- it has the power to enter into and perform its obligations under these Terms and Conditions and to carry out the transactions contemplated by these Terms and Conditions;
all Goods delivered under these Terms and Conditions will:
- be free from all Security Interests (except for any purchase money security interest held by the Vendor);
- be free from defects in materials or workmanship; and
- conform in all other respects with the requirements of these Terms and Conditions including the relevant Purchaser Order and Specifications.
13.2 Each party will notify the other party as soon as it becomes aware or reasonably suspects that any Goods or products delivered to the Purchaser do not comply with these Terms and Conditions (including the relevant Purchase Order).
COMPLIANCE WITH LAWS
The Vendor must:
- obtain and maintain, at its own cost, all approvals, permits, licences and authorisations necessary or desirable to perform its obligations under these Terms and Conditions; and
- comply with, and must ensure that each of its directors, officers, employees, agents and contractors comply with, all Laws applicable to the performance of its obligations under these Terms and Conditions including all Laws relating to occupational health and safety, the environment, dangerous goods and other hazardous material or goods (including the design, safety, handling, packaging, labelling, transport and use of goods).
The Vendor indemnifies the Purchaser from and against any loss, liability, damage, claim, action or expense (including legal expense) which the Purchaser (or any of its directors, employees, agents, officers or subcontractors) suffers or incurs as a result of any of the following:
- a breach of these Terms and Conditions by the Vendor, including any failure to deliver Goods or perform the Services in accordance with these Terms and Conditions;
- any warranty given by the Vendor (including under these Terms and Conditions) being incorrect or misleading in any way; or
- any negligent act or failure to act by the Vendor or any of the Vendor’s directors, employees, agents, officers or subcontractors,
16.1 The Purchaser may terminate these Terms and Conditions immediately by notice to the Vendor if:
- the Vendor fails to supply Goods in accordance with these Terms and Conditions, and does not remedy such failure within 7 days of the Purchaser’s notice to the Vendor to remedy such failure;
- the Vendor fails to comply with any other obligation under these Terms and Conditions, and does not remedy such failure within 7 days of the Purchaser’s notice to the Vendor to remedy such failure;
- the Vendor fails to comply with the Purchaser’s reasonable direction given in respect of any Delivery Address and its surroundings (including a direction by the Purchaser regarding access, conduct and safety at Site), and does not remedy such failure within 7 days of the Purchaser’s notice to the Vendor to remedy such failure;
- an Insolvency Event occurs in respect of the Vendor; or
- an event of Force Majeure occurs and continues for 30 days.
16.2 The Vendor may terminate these Terms and Conditions immediately by notice to the Purchaser if the Purchaser fails to pay an undisputed amount when due under these Terms and Conditions and fails to remedy such failure within 7 days of the Vendor’s notice to the Purchaser to remedy such failure. 16.3 Termination is without prejudice to the accrued rights and liabilities of the parties.
Where the Purchase Order specifically requires, the Vendor agrees to make available, at no charge to the Purchaser, technical personnel and support as reasonably required by the Purchaser during the Term to assist in any or all areas of technical service and technical information relating to Goods. The Vendor acknowledges that, without limitation, this may include remote travel and visitations to sites for its personnel at the Vendor’s sole cost (or at the rates set out in the Purchase Order).
INTELLECTUAL PROPERTY RIGHTS
18.1 The Vendor agrees to grant to the Purchaser an unrestricted, irrevocable, royalty-free and nonexclusive license to use any intellectual property rights which may be used by the Vendor in connection with the supply of, or which is incorporated in, any Goods and/or Services or other items delivered under these Terms and Conditions, and warrants that it is entitled to use and deal with such intellectual property on this basis. 18.2 The Vendor indemnifies the Purchaser from and against any action, claim, suit, demand or liability arising out of or in respect of any breach or alleged breach of any third party’s intellectual property rights relating to the delivery of Goods and/or Services or other items under these Terms and Conditions or relating to the Purchaser’s use of Goods or other items supplied in accordance with these Terms and Conditions.
19.1 Neither party will be liable for any delay or failure to perform its obligations under these Terms and Conditions to the extent caused by Force Majeure. This will not affect a party’s obligation to pay an amount when due under these Terms and Conditions. 19.2 If a party is affected, or likely to be affected, by Force Majeure, the party must immediately notify the other party with full details of the Force Majeure including the commencement date, the impact and expected duration of Force Majeure and the steps the party affected has and will take to overcome the Force Majeure. A party affected by Force Majeure must keep the other party fully informed about the Force Majeure and its actual or likely impact on these Terms and Conditions for so long as it is affected by Force Majeure. 19.3 A party claiming Force Majeure must use its best endeavours to remove, overcome or minimize Force Majeure as quickly as possible. A party must give notice to the other party as soon as it ceases to be affected by Force Majeure and must resume performing its obligations under these Terms and Conditions with the least possible delay.
CONFIDENTIALITY AND ANNOUNCEMENTS
20.1 The Vendor must keep confidential and not disclose, and ensure that its employees, agents and subcontractors keep confidential and not disclose, to any person the terms of these Terms and Conditions and any information accessed or obtained from the Purchaser or as a result of or in connection with these Terms and Conditions, except that the Vendor may disclose information to the extent reasonably required to perform its obligations under these Terms and Conditions or comply with the mandatory requirements of an applicable Law. 20.2 The Vendor must obtain the Purchaser’s approval before making any statement, announcement, release or comment to any person in relation to these Terms and Conditions, the supply of Goods and/or Services to the Purchaser, or the Purchaser’s activities (including photographs, advertisements, testimonials, letter of commendations or approval, or any other document or written matter which might imply the Purchaser’s approval of the products, actions or performance of the Vendor).
21.1 If any dispute arises under or in connection with these Terms and Conditions (Dispute), either party may give notice to the other party with details of the Dispute. 21.2 Within 14 Business Days of receiving notice of a Dispute, the senior managers of the Parties (with authority to resolve the Dispute) must meet and attempt to resolve the Dispute. 21.3 If the Dispute is unable to be resolved under clause 21.2 within 14 Business Days, the parties will endeavour in good faith to settle the Dispute at least once by a meeting between the managing directors or chief executive officers of the Parties before commencing legal proceedings to finally determine the Dispute. 21.4 The Parties must continue to perform their respective obligations under these Terms and Conditions, pending the resolution of any Dispute. 21.5 Nothing in this clause 21 is to be taken as preventing any party from seeking interlocutory relief in respect of any Dispute.
23.1 A notice, demand, document or other communication relating to these Terms and Conditions must be in writing in English, signed by the sender or its duly authorised representative and may be delivered by prepaid post, by hand, by facsimile or email to a party and marked for the attention of the person identified in the Purchase Order, or if the recipient has notified otherwise, then marked for attention in the way last notified. 23.2 A notice or other communication is effective:
- if delivered by hand, when delivered;
- if delivered by post, 3 days after posting (or 7 days after posting if sent to or from a place outside Australia);
- if sent by fax, at the time shown in the transmission report as the time that the whole fax was sent; and
- if sent by email, at the time when successfully sent.
23.3 A notice or other communication received after 5 pm in the place of receipt or on a non-Business Day is taken to be received at 9 am on the next Business Day.
24.1 A provision of these Terms and Conditions or a right created under it may not be waived or varied except in writing, signed by the party or parties to be bound. 24.2 These Terms and Conditions shall be construed and applied in accordance with and governed by the laws of Western Australia.
Business Day means a day on which banks are open for business in Perth, Western Australia. Contract has the meaning given in clause 1.3. 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. Force Majeure means any event beyond the reasonable control of a party which delays or precludes a party from performing its obligations under these Terms and Conditions despite the exercise of reasonable care, skill and precautions by that party and includes (but is not limited to) forces of nature, industrial action, restrictions imposed by government agency, terrorism, war, state of unrest, or nation-wide strikes or industrial action. Goods means the goods, if any, described on the Purchase Order. GST has the meaning given under the GST Act. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cwlth). Insolvency Event means the happening of any of these events:
- an application is made to a court for an order or an order is made that a body corporate be wound up; or
- an application is made to a court for an order appointing a liquidator or provisional liquidator in respect of a body corporate, or one of them is appointed, whether or not under an order; or
- except to reconstruct or amalgamate while solvent on terms approved by the other party, a body corporate enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them; or
- a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate on terms approved by the other party or is otherwise wound up or dissolved; or
- a body corporate is or states that it is unable to pay its debts when they fall due; or
- as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), a body corporate is taken to have failed to comply with a statutory demand; or
- a body corporate is or makes a statement from which it may be reasonably deduced by the other party that the body corporate is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth); or
- a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to a body corporate; or
- anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
- Commonwealth, State and local government legislation including regulations, by-laws, orders, awards and proclamations;
- common law and equity;
- authority requirements and consents, certificates, licenses, permits and approvals (including conditions in respect of those consents, certificates, licenses, permits and approvals); and
- guidelines of authorities with which the Vendor is legally required to comply.
Price means the price set out in the Purchase Order which includes:
- all Taxes other than GST; and
- all delivery costs including costs associated with preparing documentation or packing and preparing Goods for delivery and transport to the Delivery Address,
Procurement System is the preferred electronic software of the Purchaser. It is expected the Vendor engage this system and receive Purchase orders and load Invoices using this software. The current software utilised by the Purchaser is Coupa Software (www.coupa.com). Purchaser means Ausdrill Limited or one of its subsidiaries, as set out in the Purchase Order, which incorporates these Terms and Conditions. Purchase Order means the purchase order for Goods and/or Services issued by the Purchaser. Security Interests includes, without limitation, any security interest within the meaning of section 12(1) of the Personal Property Securities Act 2009 Services means the services, if any, described on the Purchase Order. Site means any premises or places made accessible to the Vendor to deliver the Goods and/or perform the Services (including the Delivery Address). Site Standards and Procedures means:
- Ausdrill Sustainability Policy and Management Standards;
- Ausdrill Guide to Business Conduct;
- Ausdrill Fatal Risk Control Protocols;
and any other guidelines, rules, requirements or Site specific conditions which the Purchaser or a Site representative makes available to the Vendor from time to time. Specifications means, in respect of any Goods, the following minimum specifications, standards or technical requirements:
- the manufacturer's specifications for the Goods;
- all Australian and relevant State standards, specifications and requirements applicable to the Goods; and
- all other specifications to which the Goods must comply, including any relevant performance requirements, technical constraints and quality standards in, or attached to, the Purchase Order.
Surplus Goods has the meaning given in clause 12.2. Tax means any tax, levy, impost, deduction, charge, duty, compulsory loan or withholding of whatever kind and whether direct or indirect. Tax Invoice has the meaning given under the GST Act. Terms and Conditions means these terms and conditions and every Purchase Order given in respect of them. Warranty Period means the period of months during which the warranties in relation to Defective Goods and/or Services apply under these Terms and Conditions as stipulated by the Vendor before the Purchase Order is given to the Vendor (and, if no period is stipulated, 12 months) commencing on the date of delivery of the Goods and/or the date on which the Service is performed, as applicable. Vendor means the party identified as such in the Purchase Order. Vendor’s Outlet means the retail or wholesale outlets owned and/or operated by the Vendor or other branded outlets operated by a third party pursuant to a franchise or other arrangement.