| Recitals | A. The Purchaser wishes to engage the Supplier to provide the Goods.
B. The Supplier has agreed to provide the Goods to the Purchaser on the terms of this agreement. |
| The parties agree, in consideration of, among other things, the mutual promises contained in this agreement as follows: | |
Definitions and interpretation clauses
Definitions
In this agreement:
| Agreement Representative | means each party’s representative for administering this agreement as specified or as notified by a party to the other party in writing from time to time. |
|
Alternative Arrangement |
has the meaning given in clause 15.4. |
|
Australian Consumer Law |
means Schedule 2 of the Competition and Consumer Act 2010 (Cth). |
| Business Day | means a day on which banks are open for business in Adelaide excluding a Saturday, Sunday or public holiday in that city. |
|
Change of Control |
means, in relation to a party that is not a natural person, the occurrence of an event or series of events that result in a person or persons:
(a) that did not have Control of that party prior to the event or series of events, having Control of that party following that event or series of events; or (b)that had Control of that party prior to the event or series of events ceasing to have Control of that party. |
|
Control of a corporation or other body |
means the power to determine: (a)the outcome of decisions about the financial and operating policies of that corporation or body; or (b) the membership of the majority of the board of directors (or members of a governing body having functions similar to a board of directors) of that corporation or body, whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or equity interests of that corporation or body (as applicable) or otherwise. |
|
Commencement Date |
means the date set out. |
|
Confidential Information |
means: (a)the terms of this agreement; and (b) all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of a party or a Related Body Corporate of a party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with this agreement, but does not include: (a)information which is or becomes generally available in the public domain (other than through any breach of confidence); (b)information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or (c)information which has been independently developed by the other party. |
|
Consequential Loss |
means any loss of revenue, loss of income, loss of business, loss of profits, loss of production, loss of or damage to goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from claims by third parties, loss of or damage to credit rating, loss of anticipated savings, loss or denial of opportunity or any other loss, damage, cost or expense incurred by a party or any other person that is indirect or consequential. |
|
Corporations Act |
means the Corporations Act 2001 (Cth). |
|
Defective Goods |
means Goods which are not in conformity with this agreement. |
|
Delivery Schedule |
means the schedule specifying the dates, time and locations for the delivery of Goods by the Supplier to the Purchaser as set out in Item 7 of 0 or as detailed in a Purchase Order. |
|
Disclosing Party |
has the meaning given in clause 20.2. |
|
Dispute |
has the meaning given in clause 23.1(a). |
|
Dispute Notice |
has the meaning given in clause 23.1(a). |
|
Force Majeure Event |
means: (a)an act of God; (b)war; (c)revolution; (d)any unlawful act against public order or authority; (e)a national or state-wide strike or industrial dispute; or (f)a government restraint. |
|
Goods |
means the Goods to be provided by the Supplier to the Purchaser as described in Item 3 of 0 (including any spare parts). |
|
Government Agency |
means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange. |
|
GST |
means goods and services tax and includes any replacement or subsequent similar tax. |
|
GST Law |
means A New Tax System (Goods and Services Tax) Act 1999 (Cth). |
|
Incoterms 2010 |
means the International Commercial Terms as published by the International Chamber of Commerce, as amended from time to time. |
|
Insolvency Event |
means the occurrence of any of the following events: (a) where a party is a natural person, the person becomes bankrupt, files or is served with a petition in bankruptcy or is served with a bankruptcy notice, the person is unable to pay his/her debts as and when they become due and payable or a creditor’s meeting in relation to the person is called; (b) an application is made to a court for an order or an order is made that a body corporate be wound up, and the application is not withdrawn, stayed or dismissed within 21 days of being made; (c) appointment of a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller in respect of a body corporate or its assets; (d) except to reconstruct or amalgamate while solvent, 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; (e) 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 while solvent or is otherwise wound up or dissolved; (f) a body corporate is or states that it is insolvent as that term is defined in section 95A of the Corporations Act; (g) as a result of the operation of section 459F(1) of the Corporations Act, a body corporate is taken to have failed to comply with a statutory demand; (h) a body corporate is or makes a statement from which it may be reasonably deduced that the body corporate is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act; (i) a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable law; (j) a body corporate ceases to carry on business; or (k) anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction. |
|
Intellectual Property Rights |
means: (a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques; (b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist; (c) confidential information and trade secrets; (d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and (e) proprietary rights under the Circuit Layouts Act 1989 (Cth). |
|
Law |
means: (a) legislation, ordinances, regulations, by-laws, orders, awards, proclamations, directions and practice notes of the Commonwealth, a State or Territory or any Government Agency; (b) certificates, licences, consents, permits, approvals, qualifications, registrations, standards or requirements of organisations having jurisdiction in connection with the supply of the Goods under this agreement; and (c) all other laws from which legal rights and obligations may arise. |
|
Loss |
means any loss, cost, damage, expense (including lawyer’s fees and expenses on a full indemnity basis), claim, demand or liability including any Consequential Loss. |
|
Particular Purpose |
means the particular purpose for which the Goods are acquired by the Purchaser as specified in Item 8 of 0. |
|
Performance Guarantee Period |
means the period set out in Item 10 of 0 commencing from the date of supply of the relevant Goods. |
|
Price |
means the price for the Goods payable by the Purchaser to the Supplier as set out in Item 11 of 0. |
|
Proportionate Liability Legislation |
means the proportionate liability provisions in the applicable acts including: (a) Part 4 of the Civil Liability Act 2002 (NSW); (b) Part 1F of the Civil Liability Act 2002 (WA); and (c) Part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). |
|
Purchaser’s Background Intellectual Property Rights |
means all Intellectual Property Rights owned or used by the Purchaser prior to the date of this agreement. |
|
Purchase Order
|
means any purchase order issued by the Purchaser under this agreement for the supply of the Goods. |
|
Related Body Corporate |
has the meaning given to it in section 9 of the Corporations Act. |
|
Representatives |
mean officers, directors, employees, agents, representatives, contractors or subcontractors of the relevant party. |
|
Site |
means any site at which the Goods are to be delivered. |
|
Spare Parts Supply Period |
has the meaning given in clause (b). |
|
Specifications |
means the specifications for the Goods set out in 0. |
|
Supplier Background Intellectual Property Rights |
means all Intellectual Property Rights owned or used by the Supplier prior to the date of this agreement. |
|
Termination Event |
means any event specified in clause 13.1. |
Interpretation
In this agreement unless a contrary intention is expressed:
(a) headings and italicised, highlighted or bold type do not affect the interpretation of this Agreement;
(b) the singular includes the plural and the plural includes the singular;
(c) a gender includes all other genders;
(d) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(e) a reference to a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any Government Agency (whether or not having a separate legal identity);
(f) a reference to any thing (including any right) includes a part of that thing, but nothing in this clause (f) implies that performance of part of an obligation constitutes performance of the obligation;
(g) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this agreement and a reference to this agreement includes any clause, annexure, exhibit and schedule;
(h) a reference to a document (including this agreement) includes all amendments or supplements to, or replacements or novations of, that document;
(i) a reference to a party to any document includes that party’s successors and permitted assigns;
(j) a reference to time is to South Australia;
(k) a reference to any legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re‑enactments of any of them, from time to time;
(l) a reference to an agreement other than this agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
(m) a reference to a document includes any agreement or agreement in writing, or any certificate, notice, deed, instrument or other document of any kind;
(n) a promise, agreement, representation or warranty by two or more persons binds them jointly and severally
(o) a provision of this agreement may not be construed adversely against a party solely on the ground that the party (or that party’s representative) was responsible for the preparation of this agreement or the preparation or proposal of that provision;
(p) a reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
(q) the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’, unless there is express wording to the contrary;
(r) a reference to a day is to the period of time commencing at midnight and ending 24 hours later;
(s) if a period of time is specified and dates from a day or the day of an act, event or circumstance, that period is to be determined exclusive of that day;
(t)if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day; and
(u)a reference to ‘$’, ‘A$’, ‘dollars’ or ‘Dollars’ is a reference to the lawful currency of the Commonwealth of Australia.
If anything under this agreement is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.
The Supplier must supply the Goods (and all things necessary for the supply of the Goods) to the Purchaser in accordance with this agreement.
Where some or all of the Goods have been supplied prior to the date of this agreement, the provisions of this agreement will apply as if those Goods had been supplied on the Commencement Date.
The Purchase Order is a binding agreement between the Purchaser and the Supplier in respect of the supply of Goods by the Supplier to the Purchaser, which comprises of:
the terms of this agreement; and
the terms set out in the relevant Purchase Order.
If there is any inconsistency between the Purchase Order and the terms of this agreement, the inconsistency must be resolved by applying the following order of precedence:
(a) the terms and conditions set out in this agreement; and
(b) any terms and conditions in the Purchase Order including any special conditions.
Other terms and conditions not applicable
The provisions of this agreement apply to all Goods supplied by the Supplier (and any other goods provided by the Supplier related to or provided in connection with the Goods for which no written agreement has been executed by the parties) and override any invoices or other documentation exchanged between the parties.
This agreement does not prevent the Purchaser from entering into arrangements or agreements with third parties for the supply of goods equivalent or similar to the Goods.
The Purchaser gives no representations that it will engage the Supplier to supply a minimum volume of Goods.
The Purchaser may suspend the supply of all or any of the Goods for any time on written notice to the Supplier. In such circumstances, the Purchaser will only be liable to pay for Goods delivered (and not rejected by) the Purchaser in accordance with this agreement and will not be liable to the Supplier for any Loss.
The Supplier must supply the Goods to the Purchaser strictly in accordance with the Specifications. A breach of this clause will be considered a breach of a material obligation by the Supplier under this agreement for the purposes of clause (a).
The Purchaser may, at any time by written notice to the Supplier, vary the Specifications. The Supplier’s obligation to supply the Goods in accordance with the varied Specifications will be subject to the parties agreeing on a variation to the Price. If the Parties are unable to agree on a variation to the Price, the provisions of clause 23 will apply. If the Dispute is not resolved within 45 Business Days after the date of the Dispute Notice, the Purchaser may terminate this agreement on 10 Business Days’ notice.
The Supplier may not vary the Specifications except as agreed in writing by the Purchaser.
(a) The Supplier must deliver the Goods in accordance with the Delivery Schedule.
(b) The Purchaser may vary the Delivery Schedule by written notice to the Supplier.
(c) The Supplier must not make any changes to the Delivery Schedule unless with the prior written consent of the Purchaser.
Form of delivery and transportation costs
(a) The form of delivery of the Goods will be as set out in Item 6 of 0.
(b) Unless otherwise contemplated by the form of delivery set out in Item 6 of 0, the Supplier is responsible for all transportation costs associated with the delivery of the Goods to the Site.
The Supplier acknowledges that time is of the essence in this agreement and that a breach of any time obligation under this agreement by the Supplier will be deemed to be a breach of a material obligation by the Supplier for the purposes of clause (a).
(a) Title to the Goods passes to the Purchaser on the earlier of:
(i) the first date on which the Purchaser makes a payment in respect of the Goods; or
(ii) the date on which the Goods are delivered to the Purchaser under this agreement.
(b) Risk in the Goods passes to the Purchaser when the Goods are delivered to the Purchaser under this agreement and the Purchaser signs a delivery receipt acknowledging delivery.
Warranty regarding representatives
The Supplier warrants to the Purchaser that the Supplier’s Representatives will at all times be suitability qualified, accredited and experienced and will exercise due skill and care in performing the obligations of the Supplier under this agreement.
The Supplier warrants to the Purchaser that the Goods:
(a) will be in conformity with this agreement;
(b) are owned by the Supplier or will at the time of supply to the Purchaser be owned by the Supplier;
(c) are free of any liens, charges or encumbrances including all security interests under the Personal Property Securities Act 2009 (Cth) and will be supplied to the Purchaser on that basis;
(d) comply with the Specifications;
(e) comply with all relevant Laws;
(f) are of acceptable quality;
(g) are fit for the purpose for which goods of the same kind are commonly supplied and for the Particular Purpose;
(h) are free from any defect in workmanship or materials;
(i) are supplied for a Price that is no less favourable than the Price paid by other purchasers of similar goods in similar circumstances; and
(j) when supplied to the Purchaser, do not breach any Intellectual Property Rights of any other person.
Other warranties by the Supplier
The Supplier warrants to the Purchaser that:
(a) before entering into this agreement, it made its own enquiries to satisfy itself as to the truth and accuracy of, and has therefore not relied upon, any written or oral information provided by the Purchaser; and
(b) it has fully informed itself in relation to all matters relevant to the supply of the Goods under this agreement.
Each party warrants to the other party that:
(a) it has the power to execute, deliver and perform its obligations under this agreement; and
(b) all necessary corporate and other action has been taken to authorise that execution, delivery and performance.
Australian Consumer Law Consumer Guarantees
This agreement is deemed to include all consumer guarantees that the Purchaser would be entitled to as set out in the Australian Consumer Law as if the Purchaser were a ‘consumer’ within the meaning of section 3 of the Australian Consumer Law. Such consumer guarantees will be incorporated into this agreement as warranties given by the Supplier to the Purchaser.
The Supplier acknowledges that the Purchaser has entered into this agreement in reliance on the warranties given by the Supplier in this agreement.
Policies and Procedures
If the Purchaser has any policies or procedures such as those relating to:
(a) occupational health and safety; or
(b) management plans relating to the delivery of goods,
the Supplier must comply with these policies provided the Purchaser provides a copy of those policies to the Supplier within a reasonable time before compliance is required.
Inspection, testing and Defective Goods
(a) The Purchaser may inspect and, if the Purchaser chooses, test the Goods after they have been supplied by the Supplier.
(b) The Supplier must provide the Purchaser with access to the premises of the Supplier in order to enable the Purchaser to inspect and/or test the Goods in accordance with clause 7.1(a) above.
(c) The Purchaser’s inspection, testing or acceptance of or payment for some or all of the Goods does not in any way:
(i) change or affect the Supplier’s obligations under this agreement; or
(ii) affect the Purchaser’s rights to:
(A) make a claim for any Loss it may suffer because of the Supplier’s breach of any warranty or failure to fulfil any of its other obligations under this agreement; and/or
(B) reject any Defective Goods.
If, on inspection or testing, or at any time during the Performance Guarantee Period, the Purchaser determines that any of the Goods provided are Defective Goods, the Purchaser may, at its option and in addition to any other rights it may have, reject the Defective Goods by notifying the Supplier that it is rejecting them and the Supplier must promptly (at the Purchaser’s option):
(a) refund to the Purchaser any payments made by the Purchaser in respect of any Defective Goods that the Purchaser rejects;
(b) at no cost to the Purchaser, make good any Defective Goods that the Purchaser rejects;
(c) at no cost to the Purchaser, replace any Defective Goods that the Purchaser has rejected with new Goods; or
(d) reimburse the Purchaser for any expenses the Purchaser incurs in making good any Defective Goods on behalf of the Supplier or replacing any Defective Goods with alternative goods from an alternative supplier.
If the Purchaser does not reject some Goods which do not comply with the terms of this agreement, that decision will not prevent the Purchaser from rejecting any other Goods which do not comply with the terms of this agreement.
Material Certification and Testing Documentation
The Supplier shall provide all relevant material certificates with each delivery of Goods as required by D&S Resources, confirming compliance with applicable laws, regulations, and recognised industry standards, including but not limited to relevant Australian Standards (e.g. AS/NZS 1163, AS/NZS 3678), as applicable to the nature of the supply. These certificates must include traceability, material composition, and relevant mechanical properties, and be issued by an appropriately accredited body.
(a) Where applicable, the Supplier shall provide Safety Data Sheets (SDS) in accordance with Schedule 7 of the Work Health and Safety Regulations 2011 (Cth). SDS must be in English and must conform to the format and content required by applicable WHS laws and guidelines.
(b) If specified by D&S Resources in the Purchase Order, or required by applicable law, standard, or project specification, the Supplier shall also provide additional testing and inspection documentation, including but not limited to non-destructive testing (NDT), load testing, welder qualification records, or other relevant compliance documents. Such documentation must be issued by a NATA-accredited or otherwise appropriately certified body.
(c) All documentation under this clause must be provided in electronic format, in English, and must be submitted at the time of delivery or uploaded to any system nominated by D&S Resources.
(d) The Supplier acknowledges that the timely provision of accurate and complete documentation is a material condition of the supply. Failure to comply with these requirements may result in rejection of Goods, delayed or withheld payment, or the exercise of any other remedies available to D&S Resources under these Terms or at law.
If requested by the Purchaser, the Supplier must provide ‘after sales’ service to the Purchaser free of charge including:
(a) dealing with faults and defects in the Goods;
(b) training the Purchaser’s Representatives in relation to the use of the Goods;
(c) answering queries in relation to the Goods; and
(d) additional services as set out in the Specifications.
(a) The Supplier must provide the Purchaser with a list of spare parts applicable to the Goods provided in accordance with the terms of this agreement.
(b) The Supplier must ensure that spare parts for the Goods are available from the Supplier for the period set out in Item 9 of 0 (Spare Parts Supply Period).
(c) The Supplier must supply the spare parts to the Purchaser at prices determined in accordance with Item 11 of 0. These prices are fixed for the Spare Parts Supply Period.
(a) The Purchaser must pay the Price for the Goods to the Supplier in accordance with the terms of this agreement.
(b) The Supplier must provide the Purchaser with the rebates and discounts, if any, set out in Item 12 of 0.
(a) Unless otherwise stated in this agreement, the Price is inclusive of:
(i) all costs incurred by the Supplier in supplying the Goods (including all labour costs); and
(ii) all federal, state and territory taxes and duties (other than GST).
(b) The Price excludes GST.
(c) Subject to any change in the Price resulting from the application of any express provision of this agreement, the Price is fixed.
Where a price review mechanism is set out in Item 13 of 0, the parties must adopt that price review mechanism to agree on a revised Price. Any revised Price agreed by the parties will take effect as provided in Item 13 of 0 or failing such provision, from the date notified to the Supplier by the Purchaser.
The Supplier must provide the Purchaser with a Tax Invoice (as that term is defined in the GST Act) within 10 Business Days of the end of each month during the Term.
Subject to the Supplier not being in breach of this agreement, the Purchaser must pay the invoiced amount due to the Supplier for the invoiced period within 30 days from the end of the month in which the invoice is received. The Supplier must provide the Purchaser with bank account details into which payments by the Purchaser are to be deposited.
If any invoiced amount is disputed by the Purchaser, the Purchaser must pay the undisputed amount to the Supplier in accordance with this agreement and the parties must deal with the disputed amount in accordance with clause 23.
Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 (GST Act) have the same meaning given to them in that Act.
Unless otherwise stated, any amount specified in this agreement as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
If a party makes a taxable supply under this agreement (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
Notwithstanding the foregoing, the Recipient is not obliged under this agreement to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
If an adjustment event arises in relation to a taxable supply made by a Supplier under this agreement, the amount paid or payable by the Recipient pursuant to clause 11.3 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
If a third party makes a taxable supply and this agreement requires a party to this agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
This clause does not merge on completion and will continue to apply after expiration or termination of this agreement.
It is a Termination Event if:
(a) a party (defaulting party) breaches a material obligation in this agreement and, in the reasonable opinion of the non‑defaulting party, the breach:
(i) cannot be remedied; or
(ii) can be remedied but is not remedied by the defaulting party within 10 Business Days after the non-defaulting party gives the defaulting party notice of the breach;
(b) an Insolvency Event occurs in respect of a party; or
(c) a party commits fraud or an act of serious or wilful misconduct.
Purchaser’s termination rights
The Purchaser may, in its absolute discretion, terminate this agreement at will for any reason on 30 days written notice to the Supplier.
(a) If a Termination Event occurs, the other party may:
(b) terminate this agreement immediately by notice to the other party; and
exercise its rights as if it had accepted a repudiation of this agreement by the other party.
Consequences of termination or expiry
When this agreement expires, or if this agreement is terminated prior to expiry:
(a) the Purchaser’s only liability will be to pay the Supplier for any Goods:
(i) delivered;
(ii) which the Purchaser has not subsequently rejected under this agreement; and
(iii) that are not yet paid for;
(b) the Supplier must stop working on any incomplete or undelivered Goods unless notified in writing by the Purchaser;
(c) the Supplier must not fulfil any further Purchase Order unless notified in writing by the Purchaser;
(d) this agreement continues to bind the parties in connection with all transactions, including Purchase Orders entered into before expiry or termination;
(e) each party must return to the other party, within five Business Days after the date of expiry or termination, the other party’s Confidential Information; and
(f) any accrued rights and obligations of the parties as at the date of termination are unaffected.
The Supplier must indemnify the Purchaser from and against any Loss arising directly or indirectly from or in connection with:
(a)a breach of this agreement by the Supplier;
(b) personal injury to, or illness or death of, any person (including the Supplier’s Representatives, the Purchaser’s Representatives or a third party) in connection with the Goods;
(c) damage to any property (including to any property of the Supplier, the Purchaser or a third party) caused or contributed to by an act or omission of the Supplier or in connection with the Goods;
(d) any claim made against the Purchaser by any of the Supplier’s Representatives in respect of any Law concerning remuneration, income tax, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or agreement of a competent industrial tribunal;
(e) any claim by a third party against the Purchaser arising out of any act or omission of the Supplier in connection with this agreement or the Goods;
(f) any penalty imposed for breach of any Laws in connection with the Goods;
(g) any claim that the Goods or anything the Supplier does in connection with the Goods infringes or allegedly infringes the Intellectual Property Rights of any person;
(h) the Purchaser’s use of the Goods infringes or allegedly infringes the Intellectual Property Rights of any person; and
(i) any misleading or deceptive conduct by the Supplier or any of its Representatives.
Extent to which indemnity will not apply
The indemnity in clause 14.1 will not apply to the extent that any Loss is caused by the negligence of the Purchaser, or its Representatives (other than the Supplier or the Supplier’s Representatives).
No incurring of expense necessary
The Supplier acknowledges that it is not necessary for the Purchaser to incur an expense or make a payment before enforcing a right of indemnity conferred by this agreement or to mitigate its loss.
(a) A reference to the Purchaser in this clause 14 includes a reference to the Purchaser’s, employees, directors, agents, contractors, subcontractors and Related Bodies Corporate (each, an Indemnified Party).
(b) The Purchaser, holds the benefit of this clause 14 for itself and on trust for each other Indemnified Party.
The indemnity in clause 14.1 and any other indemnity in this agreement is a continuing obligation separate and independent from any other obligation and survives the expiry or termination of this agreement.
Notwithstanding:
(a) any information provided to the Supplier by or obtained by the Supplier from the Purchaser or others or which is withheld (except where information is unreasonably withheld by the Purchaser);
(b) any difficulties the Supplier might have in satisfying the requirements of this agreement;
(c) any errors, omissions, ambiguities, conflicts or other problems in any Specification provided by the Purchaser to the Supplier;
(d) any differences in the conditions encountered on, in, near, or in connection with the Site from those which the Supplier anticipated;
(e) any changes in Law whether or not foreseeable at the date of execution of this agreement;
(f) compliance with the Purchaser’s, reasonable directions and any consequences in connection with such compliance;
(g) any increase in cost; or
(h) any other difficulties the Supplier might have in constructing, installing, commissioning, testing and delivering the Goods in accordance with this agreement,
the Supplier acknowledges that these matters are regarded as within the Supplier’s liability and risk and the Supplier remains fully responsible for constructing, installing, commissioning, testing and delivering the Goods in accordance with the requirements of this agreement at its own expense and the Price in this agreement will be regarded as providing adequate allowance for this.
The Supplier undertakes to release and discharge the Purchaser from any Loss or damage it may suffer or incur, whether arising from the negligence of the Purchaser, or howsoever, which arises directly or indirectly from or in connection with this agreement and which is not notified in writing to the Purchaser in reasonable detail within three months from the expiry or early termination of this agreement.
Maximum liability of the Purchaser
The aggregate liability of the Purchaser for any Loss suffered or incurred by the Supplier in connection with this agreement (other than liability for fees due and payable under this agreement) is limited to an amount equivalent to the total fees paid or properly invoiced and due to be paid under this agreement by the Purchaser in the 12 months period prior to the Loss was suffered.
An obligation of a party under this agreement (other than the obligation to make any payment) is suspended for the time and to the extent that party is prevented from or delayed in complying with that obligation by a Force Majeure Event.
The occurrence of a Force Majeure Event does not relieve the affected party from performing its obligations:
(a) if the delay or failure by the affected party in the performance or the occurrence of a Force Majeure Event could have been prevented by reasonable precautions taken by the affected party; or
(b) if the Force Majeure Event results from any intentional act or omission on the part of the affected party, except to the extent such fault was itself caused by a Force Majeure Event.
On the occurrence of a Force Majeure Event, the affected party must promptly:
(a) notify the other party and describe in reasonable detail the nature of the Force Majeure Event and its likely effect on the ability of the affected party to perform its obligations under this agreement;
(b) use all reasonable endeavours to avoid or remove the cause of the Force Majeure Event and perform its obligations under this agreement as soon as possible; and
(c) take all reasonable steps to mitigate any Losses caused to the other party.
If the Supplier is affected by a Force Majeure Event, for the duration of any Force Majeure Event, the Purchaser may engage a third party to supply, construct, install, commission or test the Goods (Alternative Arrangement). Any costs or expenses in undertaking the Alternative Arrangement in excess of the costs and expenses that would have been incurred had the Force Majeure Event not arisen will be the responsibility of the Supplier and will constitute a debt due from the Supplier to the Purchaser payable on demand.
Either party may, by providing 20 Business Days’ notice to the other party, terminate this agreement if a Force Majeure Event continues for more than six months.
Supplier Background Intellectual Property Rights
(a) The Supplier remains the owner or licensee (as the case may be) of all Supplier Background Intellectual Property Rights.
(b) The Supplier grants or must procure the granting to the Purchaser of a non-exclusive, royalty-free licence to use the Supplier Background Intellectual Property Rights for the purpose of using the Goods.
The Purchaser’s Background Intellectual Property Rights
The Purchaser remains the owner or licensee (as the case may be) of all of the Purchaser’s Background Intellectual Property Rights.
Agreement Intellectual Property Rights
Any Intellectual Property Rights developed by the Supplier solely or developed by the Supplier and the Purchaser in relation to this agreement are owned by the Purchaser. The Supplier assigns all right, title and interest in such Intellectual Property Rights to the Purchaser. The Supplier must provide the Purchaser with all reasonable assistance, at the Purchaser’s cost, to protect such Intellectual Property Rights, including obtaining patents and other registered protection in the Purchaser’s name.
The Supplier must, before the Commencement Date and at its own cost, take out and maintain during the Term with a reputable insurer:
(a) product liability insurance for a minimum cover for an amount of $20 million in aggregate in any one policy year, unless varied with the written consent of the Purchaser;
(b)professional indemnity insurance in respect of the supply of the Goods in connection with this agreement for an amount of at least $20 million (to be maintained during the Term of the agreement and for a period of not less than seven years after the expiry or termination of this agreement);
(c) a comprehensive public liability insurance policy to cover all sums which the Supplier may become legally liable to pay as compensation consequent on:
(i) death of, or bodily injury (including disease or illness) to, any person; and
(ii) loss of, or damage to, property,
happening anywhere in Australia arising out of or in connection with this agreement, for an amount of at least $20 million per event;
(d) insurance in respect of all claims and liabilities arising, whether at common law or under statute, relating to workers compensation or employer’s liability, from any accident or injury to any person employed by the Supplier in connection with the Goods. This insurance must be in compliance with the Laws of the relevant jurisdiction in which the Goods are supplied and be extended to indemnify the Purchaser where the jurisdiction allows;
(e) a policy of insurance covering liability for death or personal injury to any person, and for loss or damage to property, caused by the Supplier’s ownership and/or use of any motor vehicles in connection with this agreement. Unless otherwise limited by statute, the limit of liability provided by that policy must be for an amount of at least $10 million; and
(f) any other insurance policies reasonably required by the Purchaser from time to time.
The Supplier must ensure that the policies of insurance that it is required to take out under this agreement note the Purchaser’s interest as a principal.
Without prejudice to any other right it may have under this agreement, if the Supplier fails to comply with this clause 18 the Purchaser may:
(a) refuse to make payments owed to the Supplier under this agreement until the Supplier complies with this clause 18; and/or
(b) take out and maintain any policies of insurance required by this clause 18 and, at its option, set off payment of any invoice against the expenses incurred in taking out such policies on behalf of the Supplier or recover the expenses as a debt payable by the Supplier on demand.
On the Commencement Date and each anniversary of the Commencement Date, the Supplier must provide to the Purchaser evidence of the currency of the insurance policies it is required to maintain under this clause 18 and a copy of the relevant policies.
The Supplier must not do anything which prejudices any policy of insurance and must immediately notify the Purchaser in writing of any event which results in an insurance policy being altered where such alteration materially affects coverage under this agreement.
If any event occurs which may give rise to a claim involving the Purchaser under any policy of insurance taken out by the Supplier under this clause 18, then the Supplier must:
(a) notify the Purchaser within 14 days of that event; and
(b) ensure that the Purchaser is kept fully informed of any subsequent actions and developments concerning the relevant claim.
The Supplier must ensure that:
(a) any subcontractor engaged by the Supplier in relation to the supply of the Goods under clause 30.3 effects and maintains the insurances, and for the amounts, required by this clause 18; and
(b) its subcontractors comply with all relevant Laws concerning insurance cover for liabilities in relation to employees and subcontractors.
The Supplier must maintain accurate and complete records of the Goods supplied to the Purchaser.
The Supplier must permit the Purchaser (or any third party appointed by the Purchaser) to audit the records of the Supplier and the performance of the Supplier’s obligations against this agreement.
The Supplier must provide and ensure that its Representatives provide the Purchaser, or any third party on behalf of the Purchaser, with all reasonable assistance, including the provision of any information reasonably requested by the Purchaser or the third party (as the case may be) in relation to such an audit.
The Supplier must comply with any reporting requirements notified by the Purchaser to the Supplier from time to time.
Other than as permitted under clause 20.2, neither party may disclose to any person the Confidential Information.
A party (Disclosing Party) may disclose the Confidential Information of the other party:
(a) to its Related Bodies Corporate, its Representative and/or a Representative of its Related Bodies Corporate that need to know the Confidential Information for the purposes of this agreement, subject to the Disclosing Party taking reasonable steps to ensure that any such Related Bodies Corporate and/or Representative (as applicable) are fully aware of the confidential nature of the Confidential Information before the disclosure is made;
(b) which is required to be disclosed by Law, provided that the Disclosing Party has:
(i) given the other party prior notice where practicable; and
(ii) provided all assistance and co-operation which the other party reasonably considers necessary for that purpose; and
(c) to professional advisers of a party or to potential buyers of the party or the party’s business, provided that the recipients of such Confidential Information are subject to obligations of confidentiality.
The Supplier must not hold itself out as an agent of the Purchaser or publicise that it has been engaged by the Purchaser.
Each party must ensure that its Related Bodies Corporate and Representatives who have or may have access to the Confidential Information of the other party are aware of the confidential nature of the Confidential Information and treat the Confidential Information accordingly and must procure that any such Related Bodies Corporate and/or Representatives keep such information confidential.
The obligations under this clause 20 will survive the termination or expiry of this agreement.
The Disclosing Party holds the benefit of this clause 20 for itself and for each of its Related Bodies Corporate.
The Supplier must comply with the provisions of the Privacy Act 1988 (Cth) (as amended) in relation to any Personal Information (as defined in the Privacy Act) provided to the Supplier by the Purchaser or the Purchaser’s Representatives.
Any notice, demand, approval, consent or other communication under this agreement (Notice) must be in writing in English or accompanied by a certified translation into English and must be:
(a) delivered personally;
(b) sent by facsimile; or
(c) sent by regular post (or airmail if posted to or from a place outside Australia),
to a party at:
(d)the address of the party set out in clause 22.3 (Nominated Contact Details); or
(e) such other contact details as the party may from time to time notify to the other the other parties for the purposes of, and in accordance with, this clause.
When Notices considered given and received
A Notice given in accordance with clause 22.1 takes effect when received (or such later time as specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent from and to a place within Australia by regular post, at 9:00 am on the sixth Business Day after the date of posting;
(c) if sent from a place within Australia to a place outside Australia by airmail, at 9.00 am on the tenth Business Day after the date of posting;
(d) if sent from a place outside Australia by airmail, at 9.00 am on the twelfth Business Day after the date of posting;
(e) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the Notice, unless within four business hours (being a period of time between 9.00 am and 5.00 pm on a Business Day) after the transmission, the recipient informs the sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00 pm on a Business Day, the Notice is taken to be received at 9.00 am on the next Business Day after that delivery, receipt or transmission.
For the purposes of this clause 22, the Nominated Contact Details of the parties are the personnel listed in Schedule 1.
(a) If a party claims that a dispute has arisen under or in connection with this agreement (Dispute), that party must give notice of the Dispute (Dispute Notice) to the other party in accordance with clause 23, specifying the nature of the Dispute.
(b) A Dispute cannot be the subject of litigation until the provisions of clauses 24.2, 24.3, 24.4 and 24.5 have been complied with (except where a party seeks urgent interlocutory relief from a court, in which case that party does not need to comply with clauses 24.2, 24.3, 24.4 and Error! Reference source not found. before seeking such relief).
Within ten Business Days of the date of the Dispute Notice (or such other period as agreed between the parties to the Dispute) each of the parties to the Dispute must meet and use their reasonable endeavours to resolve the Dispute.
Resolution by senior executives
If the Dispute is not resolved under clause 24.2 within three Business Days (or such other period agreed between the parties to the Dispute) after the date of the Dispute Notice, the Dispute must be referred to the senior executives of each of the parties to the Dispute, who must meet and use their reasonable endeavours to resolve the Dispute.
If the Dispute is not resolved under clause 24.3 within 15 Business Days (or such other period agreed between the parties to the Dispute) after the date of the Dispute Notice, the parties to the Dispute must refer the Dispute to mediation administered by the Australian Disputes Centre (ADC) before having recourse to litigation.
(a) The mediation under clause 24.4 must be conducted in accordance with the ADC Guidelines for Commercial Mediation which are operating at the time the matter is referred to the ADC (Guidelines). The Guidelines set out the procedures to be adopted for the mediation, the process of selection of the mediator and the costs involved.
(b) The terms of the Guidelines are deemed to be incorporated into this agreement.
Pending resolution of any Dispute, the parties must continue to perform their obligations under this agreement without prejudice to their respective rights and remedies (except where such obligations are the subject of the Dispute).
If the Dispute is not resolved under clause Error! Reference source not found. within 40 Business Days after the date of the Dispute Notice, either party may commence litigation proceedings.
This clause 23 will survive termination of this agreement.
(a) Each party must appoint an Agreement Representative with responsibility for administering the agreement.
(b) Each party must promptly advise the other party in writing of any changes to the identity of its Agreement Representative.
Not used
The Agreement Representative of the Purchaser may issue reasonable directions to the Supplier in relation to the Goods or any term of this agreement (including a direction requiring the Supplier to replace a Representative involved with the supply of the Goods).
Proportionate Liability Legislation
To the maximum extent permitted by law:
(a) the Proportionate Liability Legislation shall not apply to the Contract; and
(b) the Supplier will not seek to apply the Proportionate Liability Legislation.
To the extent that the parties cannot exclude the operation of the Proportionate Liability Legislation through contractual terms, the Supplier indemnifies the Purchaser for any loss incurred by reason of the Proportionate Liability Legislation applying.
The Supplier agrees that:
(a) in each subcontracting agreement entered into under clause 30.3, it will include provisions that, to the extent permitted by law, effectively exclude the operation of the Proportionate Liability Legislation;
(b) it must require and ensure that each subcontractor will include in any further subcontractor agreement the same provisions; and
(c) it will do so in in relation to all rights, obligations or liabilities arising under or in relation to that subcontracting agreement however such rights, obligations or liabilities are sought to be enforced.
(a) If, during the Term, the Purchaser disposes of the whole or a part of its business to which the Supplier supplies the Goods (Outgoing Business) then, upon notice from the Purchaser, the Supplier must, at the Purchaser’s option:
(i) supply the Goods to the acquirer of the Outgoing Business for a period of transition which shall not exceed the remainder of the Term; and/or
(ii) enter into a new agreement (the New Agreement) with the Outgoing Business to supply the Goods to the Outgoing Business on terms which are no less favourable than those contained in this agreement; or
(iii) execute a novation deed on terms acceptable to the Purchaser, agreeing to the novation of the Purchaser’s rights and obligations under this agreement to the Outgoing Business.
(b) The Supplier must continue to perform its obligations under this agreement notwithstanding the transactions referred to in clause (a)(i)(i).
(c) For the avoidance of doubt, after the disposal referred to in clause 29(a)(i), the acquirer of the Outgoing Business is responsible for payment of the price and all obligations in respect of the Goods provided to that acquirer by the Supplier.
(d) The parties further agree to implement any changes to this agreement, or the Goods, as reasonably necessary in consequence of the transaction referred to in clause 29(a)(i) above.
(a) The Supplier may not assign or otherwise deal with any of its rights under this agreement, without the prior written consent of the Purchaser. The Purchaser may withhold its consent in its absolute discretion.
(b) An assignment in breach of clause 30.1(a) is intended by the parties to be void and of no force and effect.
(c) A breach of clause 30.1(a) by a party entitles the other the Purchaser to terminate this agreement.
A Change of Control of the Supplier is not permitted without the prior written consent of the Purchaser (which consent must not be unreasonably withheld or delayed).
(a) The Supplier may not subcontract any of its obligations under this agreement without the prior written consent of the Purchaser, which consent may be withheld by the Purchaser in its absolute discretion.
(b) The Supplier is not as a result of any subcontracting arrangement relieved from the performance of any obligation under this agreement.
(c) The Supplier is liable to the Purchaser for any act or omission, default or negligence of any subcontractor or any employee or agent of the subcontractor as if it were the act, omission, default or negligence of the Supplier.
The Purchaser may set off from any amounts it owes the Supplier any amounts the Supplier owes to the Purchaser.
A variation of any term of this agreement will be of no force or effect unless it is in writing and signed by each of the parties.
Each party must pay its own costs (including legal costs) and expenses in connection with the negotiation, preparation, execution and delivery of this agreement.
(a) A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver.
(b) A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
(c) A waiver given by a party in accordance with clause (a):
(i) is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
(ii) does not preclude that party from enforcing or exercising any other right, remedy or power under this agreement nor is it to be construed as a waiver of any other obligation or breach.
If a provision in this agreement is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this agreement.
Governing law and jurisdiction
(a) This agreement is governed by and is to be construed under the laws in force in South Australia.
(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
Each party must, at its own expense, do all things and execute all further documents necessary to give full effect to this agreement and the transactions contemplated by it.
The Supplier party has not relied on any statement by Purchaser which has not been expressly included in this agreement.
This agreement and the terms and conditions in any Purchase Order (including any special conditions) state all of the express terms of the agreement between the parties in respect of its subject matter. They supersede all prior discussions, negotiations, understandings agreements and agreements in respect of its subject matter.
(a) This agreement may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.
(b) A party that has executed a counterpart of this agreement may exchange that counterpart with another party by emailing it to the other party or the other party’s legal representative and, if that other party requests it, promptly delivering that executed counterpart by hand or post to the other party or the other party’s legal representative. However, the validity of this agreement is not affected if the party who has emailed the counterpart delays in delivering or does not deliver it by hand or by post.
(a) The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship.
(b) Nothing in this agreement gives a party authority to bind any other party in any way.
(a) Unless expressly required by the terms of this agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this agreement.
(b) A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.
Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
Clauses that survive termination
(a) Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiration of this agreement, clauses 6, 13.4, 14, 17, 18.1, 18.2, 20, 23and 30.17 survive the termination or expiration of this agreement.
(b) Each indemnity contained in this agreement is a continuing obligation, independent from the other obligations of the parties and survives the termination or expiration of this agreement. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this agreement.