Terms & Conditions - Purchase Orders
THIS PURCHASE ORDER IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS
1. In this Purchase Order and these Terms and Conditions:
(a) the term "Purchaser" means GOUGH & GILMOUR HOLDINGS PTY LIMITED ACN 008 646 259;
(b) the term "Seller" means the person, firm or corporation from whom the merchandise described in this Purchase Order has been ordered; and
(c) the term Customer means a customer who has purchased, or entered into an agreement to purchase, goods or services from Purchaser which emanate in part or in full from Seller.
2. AGREEMENT
2.1 The terms and conditions of this Purchase Order constitute the entire agreement between the parties and supersede all previous communications whether oral or in writing. Changes will be binding only if in writing signed by an authorised representative of the Purchaser.
2.2 This Purchase Order, when properly signed and bearing a purchase order number is the only document which will be recognised by the Purchaser as authority for charging the merchandise to its account.
2.3 In accepting this Purchase Order the Seller agrees to be bound by any written documents attached to it or incorporated into it by specific reference.
2.4 No local, general or trade customs can alter or vary the terms of this Purchase Order.
3. SHIPPING AND DELIVERY
3.1 Seller will deliver to the Purchaser the merchandise described in this Purchase Order:
(a) to the f.o.b. point specified in this Purchase Order; and
(b) in accordance with any shipping instructions specified in this Purchase Order.
3.2 Seller will deliver the merchandise described in this Purchase Order to the Purchaser:
(a) on or before the date specified in this Purchase Order, if a date is specified in this Purchase Order. Seller acknowledges that time is of the essence in the delivery of the merchandise where a date is specified in the Purchase Order; or
(b) within a reasonable time, if no date is specified in this Purchase Order.
3.3 A notice of shipment shall be sent by Seller to Purchaser at the time the merchandise described in this Purchase Order is shipped which shall state the number of the order, the kind of merchandise, the Seller's name and the route by which the shipment is being made.
3.4 The Seller must ensure that all invoices, packing slips, delivery dockets and correspondence provided to the Purchaser have clearly marked on them the order date, unit, part number and description in this Purchase Order, and that all deliveries of merchandise be accompanied by a delivery docket.
3.5 Seller shall be accountable for any difference in freight charges arising from Seller's failure to follow shipping instructions specified in this Purchase Order.
4. PRICES
4.1 Any prices specified in this Purchase Order are fixed, firm and not subject to escalation and include freight, cartage, insurance, packaging, use or supply of pallets and containers, all taxes (except as otherwise provided in these terms and conditions), duties and fees payable in respect of the goods and/or services and any other extra costs.
4.2 Unless otherwise specified in these conditions no increase in prices will be allowed unless approved by the Purchaser in writing.
5. INVOICES
5.1 The Seller must issue to the Purchaser a valid tax invoice for the purposes of GST or any other tax applicable to the supply by Seller to Purchaser of the merchandise.
5.2 Any delay by Seller in delivering part or all of the merchandise specified in this order in accordance with clause 3 of these terms and conditions and any delivery times specified in the Purchase Order will justify the Purchaser withholding payment of the invoice.
6. PAYMENTS
The payment period for the merchandise supplied by the Seller to the Purchaser under this Purchase Order will be as specifically agreed in writing between the Seller and the Purchaser, or if no payment period is agreed upon:
(a) Where the merchandise is being supplied from outside Australia - within 90 days open account from the issue date of the Bill of Lading for the delivery of the merchandise specified in the purchase order to the Purchaser; or
(b) where the merchandise is being supplied from within Australia - within 45 days from the end of the month in which the Purchaser receives the Seller's invoice or the merchandise specified in this Purchase Order, whichever is the later.
7. INSPECTION
7.1 The Seller will carry out such special tests on the merchandise as the Purchaser may reasonably request.
7.2 Prior to delivery of the merchandise to the Purchaser, the Purchaser may upon request inspect the merchandise whether in the course of manufacture or in their finished state. Such inspection does not constitute acceptance of the merchandise nor operate to release the Seller from its liabilities under these terms and conditions whether or not such inspection or tests revealed or should have revealed any defect in the merchandise.
7.3 All merchandise specified in this purchase order is subject to inspection by the Purchaser upon delivery to the Purchaser, even though payment may have been made prior to arrival.
8. REJECTION
8.1 If, upon inspection the merchandise are found to be unsatisfactory, defective or of inferior quality or workmanship, or fail to meet any other requirements specified in this Purchase Order (the Deficiencies), the Purchaser may give written notice of rejection of the merchandise to the Seller specifying the Deficiencies and may return the merchandise to the Seller.
8.2 Upon the Seller receiving the notice of rejection of the merchandise, the Seller will:
(a) immediately repay to the Purchaser all amounts paid by the Purchaser to the Seller on account of the purchase price of the rejected merchandise;
(b) arrange for the immediate removal of the rejected merchandise from the Purchaser's premises at the expense of the Seller;
(c) within 28 days and at the sole option of the Purchaser repair, or replace free of charge (including for the avoidance of doubt free of freight charges), merchandise rejected by the Purchaser; and
(d) notwithstanding any term or condition to the contrary, assume all risk associated with the rejected merchandise.
8.3 The Purchaser at all times is entitled to recover damages for any loss sustained in consequence of the merchandise being unsatisfactory, defective, of inferior quality or workmanship, or failing to meet any other requirements of this Purchase Order, irrespective of whether or not the Purchaser has inspected the merchandise or given the Seller notice of rejection.
9. CANCELLATION
9.1 If the merchandise covered by this Purchase Order is standard stock merchandise, Purchaser, at its option, may cancel at any time any unshipped portion of this order without further obligation hereunder except to make payment, subject to other applicable terms of these terms and conditions, for the merchandise shipped prior to such cancellation.
9.2 If the merchandise specified in this Purchase Order constitute merchandise manufactured or fabricated in accordance with the specifications and directions of the Purchaser, the Purchaser may at any time prior to completion of the manufacture or fabrication of the merchandise cancel the Purchase Order by notice in writing to the Seller. Upon receipt of the notice the Seller must stop work except as otherwise directed by the Purchaser. After cancellation, the Purchaser will pay to the Seller the amounts calculated as follows:
(a) The Seller's actual out of pocket costs and expenses to the date of the cancellation, including it's expenses in connection with cancellation of any sub-contract, as approved by the Purchaser, plus five percent (5%) of such costs and expenses, but in no event can the total amount to be paid to the Seller exceed the purchase price specified in this Purchase Order.
(b) If the Seller on receipt of the notice of cancellation is in default under these terms and conditions the Seller will not be entitled to the five per cent (5%) of it's out of pocket costs and expenses.
(c) Upon making this payment, any of the merchandise or uncompleted portions of the merchandise will become the property of the Purchaser. Notwithstanding anything contained in these terms and conditions, the Seller is not entitled to any prospective profits or any damages caused by cancellation of this Purchase Order by the Purchaser.
10. TITLE AND RISK
10.1 Title and all risk associated with the merchandise will pass to the Purchaser on delivery of the merchandise in accordance with this Purchase Order.
10.2 Seller shall assume and pay any and all loss or damage to the merchandise the subject of this Purchase Order from any cause whatsoever until delivered to Purchaser at the f.o.b point specified in this Purchase Order.
11. WARRANTIES AND INDEMNITIES
11.1 The Seller warrants that the merchandise:
(a) corresponds to any description in this Purchase Order;
(b) conforms to any applicable specifications or quality standards;
(c) conforms in all respects with any samples given to the Purchaser by the Seller;
(d) is of good and merchantable quality;
(e) is free from defects of design workmanship or materials, and will remain free from such defects for a period of 24 months from the date of sale by Purchaser to its Customer or from the date of installation by Purchaser, whichever is the later; and
(f) is fit for the purpose and conditions of use for which it is sold.
11.2 The Seller warrants that where at the Purchaser's direction or with the Purchaser's authority, the seller installs, applies or fits any part of the merchandise specified in this Purchase Order to on or in any good component machine or equipment owned controlled or held by the Purchaser, the installation, application or fitting of the merchandise will be carried out in a thorough and workmanlike manner using tools or equipment of good and merchantable quality and suitable for the particular purpose.
11.3 Seller warrants that the merchandise specified in this Purchase Order is free and clear of all liens and encumbrances whatsoever and that the Seller has a good and marketable title to same.
11.4 Seller warrants that the sale or use of the merchandise in this Purchase Order does not infringe upon any Australian intellectual property right, including without limitation patent, trade mark, registered design, right of confidential information or copyright.
11.5 Seller warrants that all merchandise delivered pursuant to this Purchase Order shall have been produced, sold or delivered to Purchaser in compliance with all applicable laws, ordinances, orders, rules and regulations, whether international, national, state or local, and that the prices therefore are not in excess of the ceiling process established pursuant thereto.
11.6 Seller warrants that the purchase price stated in this Purchase Order is in accordance with any applicable government regulations governing such merchandise.
11.7 The Seller agrees to Indemnify and hold and save the Purchaser free and harmless against any allegations, claims, causes of action, suits, judgements, expenses, demands, costs fines or liability whatsoever which may arise against the Purchaser or Purchaser's Customers in respect of or in any way connected to a breach by the Seller of any of the warranties in this clause 11 or any other clause of these Terms and Conditions.
12. WORKERS COMPENSATION
This order is conditional upon the seller holding current Workers Compensation Insurance and (if applicable) Employer's Liability Insurance in accordance with the requirements of relevant legislation and indemnifying the purchaser in respect of any liability for the personal injury by accident of the Seller, its agents, contractors or employees.
13. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
13.1 Any specifications, engineering and other data, software, drawings, blueprints and other documents, in tangible or electromagnetic form provided by the Purchaser (or any third party at request of the Purchaser) or any information otherwise disclosed by the Purchaser to the Seller for the purposes of this agreement or otherwise (the Information) must be treated as highly confidential and the Seller agrees:
(a) not to use or copy the Information for any purpose other than fulfillment of this Purchase Order;
(b) not to disclose the Information to any other person without the prior written consent of the Purchaser; and
(c) to return the Information (including, if so demanded by the Purchaser, all copies) to the Purchaser on completion of the delivery of the merchandise in accordance with this Purchase Order.
13.2 The Purchaser will retain title to any intellectual property rights (which includes any statutory or common law copyright, trade mark, patent, design or circuit layout rights) arising out of or in connection with any specifications, drawings, designs, or layouts in any tangible or electromagnetic forms which are disclosed to the Seller in relation to the performance of this Purchase Order.
14. INSURANCE
Anything furnished to the Seller by the Purchaser pursuant to this Purchase Order including, without limitation, samples, drawings, patterns, tooling, equipment, work in progress and materials, will remain the property of the Purchaser, will be held at the Sellers risk and the Seller will be the insurer of this material and will return this material upon completion of the work or upon demand by the Purchaser.
15. GOODS AND SERVICES TAX
15.1 Definitions
In this clause:
GST means any goods and services tax imposed by legislation enacted by the Commonwealth Government of Australia including but not limited to a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (C'th) and the related imposition Acts of the Commonwealth.
Equivalent Tax means any goods and services tax applicable to the supply of merchandise by Seller to Purchaser under these Terms and Conditions, whether imposed in Australia or overseas.
Supply means a Taxable Supply as defined in A New Tax System (Goods and Services Tax) Act 1999 (C'th), or supply in relation to which Equivalent Tax is payable.
Input Tax Credit means Input Tax Credit as defined in A New Tax System (Goods and Services Tax) Act 1999 (C'th), or an equivalent tax credit for the purposes of any Equivalent Tax.
Tax Invoice means a tax invoice in a form which complies with the GST Law or law applicable to any Equivalent Tax.
15.2 Consideration exclusive of GST
(a) Any consideration or amount payable under this agreement, including any non-monetary consideration (as reduced in accordance with paragraph (e) if required) (Consideration) is exclusive of GST or Equivalent Tax.
(b) If GST or Equivalent Tax is or becomes payable on the Supply, an additional amount (Additional Amount) is payable by the party providing consideration for the Supply (Recipient) equal to the amount of GST or Equivalent Tax payable on that Supply as calculated by the party making the Supply (Supplier) in accordance with the GST Law or law applicable to any Equivalent Tax.
(c) The Additional Amount payable under paragraph (b) is payable at the same time and in the same manner as the Consideration for the Supply provided the Supplier has provided the Recipient with a valid Tax Invoice.
(d) If for any reason (including, without limitation, the occurrence of an Adjustment Event) the amount of GST or Equivalent Tax payable on a Supply (taking into account any Decreasing or Increasing Adjustments in relation to the Supply) varies from the Additional Amount payable by the Recipient under paragraph (b):
(i) the Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
(ii) the refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law or law applicable to any Equivalent Tax; and
(iii) the Supplier must notify the Recipient of the refund, credit or further amount within 14 days after becoming aware of the variation to the amount of GST or Equivalent Tax payable. Any refund or credit must accompany such notification or the Recipient must pay any further amount within 7 days after receiving such notification, as appropriate. If there is an Adjustment Event in relation to the Supply, the requirement for the Supplier to notify the Recipient will be satisfied by the Supplier issuing to the Recipient an Adjustment Note within 14 days after becoming aware of the occurrence of the Adjustment Event.
(e) Despite any other provision in this agreement, if an amount payable under or in connection with this agreement (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred.
(f) Any reference in this clause to an Input Tax Credit to which a party is entitled includes an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of a GST Group of which the party is a member is entitled.
15.3 Payments
Unless otherwise agreed in writing by the Purchaser and the Supplier, the following principles apply when determining the amount of a payment under this agreement:
(a) if a party is entitled under this agreement to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST or Equivalent Tax component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed under the GST Law or law applicable to any Equivalent Tax; and
(b) if a party sets off an amount under this agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with subclause (a).
16. GENERAL COMPLIANCE
16.1 In the supply of the merchandise specified in this Purchase Order, the Seller must:
(a) obtain all licences, permits and approvals required for the supply of the merchandise to the Purchaser, including without limitation export and import licences.
(b) strictly comply with all applicable laws, ordinances, orders, rules and regulations, whether international, national, state or local.
16.2 Upon Seller's request, Purchaser will supply Seller with information specified by Seller which Seller reasonably requires to comply with Clause 16.1.
16.3 Upon the Purchaser's request, the Seller must furnish it with such evidence of compliance with this clause 15 as the Purchaser may require at any time.
17. NO ASSIGNMENT
This Purchase Order can not be assigned by the Seller without the prior consent of the Purchaser which may be withheld or granted conditionally at its discretion.
18. NOTICES
Any notice required under this Purchase Order must be given in writing or by facsimile only to the parties at the address or facsimile number specified by the party on this Purchase Order (or at such other address or facsimile number as may be provided by the party in writing for the purpose). Once notice is given or made it takes effect:
(a) in the case of a notice by post within Australia, three days after posting;
(b) in the case of a notice by international post six days after posting;
(c) in the case of courier delivery, one day after the specified delivery period confirmed in writing by the courier; and
(d) in the case of notice by facsimile on production of a transmission report by the transmitting facsimile machine confirming that the facsimile was sent in its entirety.
19. NO AGENCY
The Seller and the Purchaser are independent contractors. This Purchase Order does not create any agency, partnership, joint venture, or franchise relationship. No employee of the Purchaser or the Seller will be, become, or be deemed to be or become an employee of the other party under this Purchase Order. The Purchaser and the Vendor do not have the right or authority to assume or create any obligation whatsoever on the other's behalf
20. FORCE MAJEURE
Neither the Seller nor the Purchaser is liable to the other for default or delay in performing their obligations under this Purchase Order caused by any occurrence beyond their reasonable control including, without limitation, fires, strikes, industrial disturbances, riots, wars, acts of God, Government order or regulation, storm, tempest or epidemics.
21. GOVERNING LAW AND JURISDICTION
These terms and conditions and this Purchase Order are governed by and construed in accordance with the law of New South Wales, as if performed wholly within that State and without giving effect to the principles of conflict of law, and each party irrevocably submits to the jurisdiction of the courts of that State. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
22. DISPUTES
(a) Except for urgent interlocutory relief, any dispute in relation to this Purchase Order that cannot be resolved by the persons principally responsible for the day to day relationship between the parties must be referred to one or more equal numbers of the directors of each of the Purchaser and the Supplier.
(b) The directors must promptly negotiate in good faith in an attempt to amicably resolve the dispute.
(c) If the dispute is resolved by the parties in accordance with paragraph (b), then the parties must record that resolution in writing.
(d) If the dispute is not resolved within 10 business days of such meeting, or such longer period as may be agreed by the parties, the parties may pursue other dispute resolution avenues.
23. INVALIDITY
If a provision of this Purchase Order or these Terms and Conditions or a right or remedy of a party under this Purchase Order or these Terms and Conditions is invalid or unenforceable:
(a) it is read down or severed only to the extent of the invalidity or unenforceability; and
(b) the remaining provisions of this Purchase Order and these Terms and Conditions remain valid and enforceable.
24. AMENDMENTS AND WAIVERS
24.1 This Agreement may be amended only by a written document signed by the parties.
24.2 A waiver of a provision of this Agreement must be in writing and signed by the party granting the waiver.
24.3 Failure by a party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver.
25. FURTHER ASSURANCES
Each party must do all things necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
26. TERMINATION
26.1 Notwithstanding any term or condition to the contrary this Purchase Order may be terminated in whole or in part at the option of the Purchaser on written notice to the Seller, upon the happening of any of the following events:
(a) If the Seller is adjudicated bankrupt, or if a receiver or trustee is appointed to the Seller, or for an assignment for the benefit of the Sellers creditors is made; and
(b) If the Seller fails to substantially perform or is in breach of any material covenant, obligation, representation or warranty and the Purchaser delivers to the Seller written notice informing the Seller of the default, and the default is not cured within 14 days after receipt of the notice.
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