PURCHASE ORDER TERMS AND CONDITIONS
Tim Davies Landscaping Pty Ltd (TDL, we, us, our) and the Subcontractor (you, your, yours) agree that the Subcontractor will perform the Services for TDL on these Terms and Conditions.
1. CONTRACT
1.1 The Purchase Order that we issue to you together with these Terms and Conditions form the Contract between you and us.
1.2 You agree to be bound by the Contract on the first to occur of the following events:
(a) you supply the Goods or commence the Services;
(b) you accept the Purchase Order, whether verbally or in writing; or
(c) you issue a claim for payment.
1.3 The Purchase Order prevails in case of any inconsistency with these Terms and Conditions.
1.4 In providing these Terms and Conditions, we make no representation or guarantee as to the quantity, quality, regularity or profitability of the Services that we may engage you to perform.
2. THE SERVICES
2.1 You must ensure that any Goods and/or Services that you supply under the Contract:
(a) are manufactured, supplied and/or performed to a high standard in accordance with industry best practice;
(b) comply with all relevant Legislative Requirements, building codes and Australian Standards;
(c) are supplied in accordance with any specifications and/or timeframe referred to in the Purchase Order (including the Delivery Date) or otherwise notified to you by us; and
(d) are supplied in accordance with any directions given by us to you.
3. TIME FOR PERFORMANCE
3.1 Time is of the essence in relation to the supply of the Goods and/or Services.
3.2 You must supply the Goods and deliver the Services by any Delivery Date and in accordance with any construction program that we notify to you.
3.3 We may update the construction program from time to time, and you must comply with any updated construction program notified by us to you in connection with this Contract.
3.4 If requested by us, you must provide us with a construction program within 5 days of the date of the Purchase Order.
3.5 You must, give written notice to us of any actual or likely delay in the supply of the Goods and/or Services and its cause within 3 days of its occurrence.
3.6 You must take all reasonable steps to prevent delay.
3.7 To the extent that a delay notified to us in accordance with clause 3.5 results from an act or omission of us or our client and is not attributable to you, you may be entitled to an extension to the Delivery Date.
4. PERFORMANCE
4.1 You must obtain in your name all permits, registration and licences as are necessary for you to perform your obligations under the Contract.
4.2 You must deliver the Goods to, and provide the Services at, the Site, the Delivery Address or any other location specified by us, by the Delivery Date.
4.3 You must, when delivering the Goods and/or performing the Services:
(a) ensure that you or your Personnel are available to deliver the Services on a full-time basis from the date of issue of the Purchase Order until the completion of the Services;
(b) not interfere with our activities or the activities of any of our other subcontractors or any other third party at the Site; and
(c) comply with, and ensure that your Personnel comply with, all directions and orders given by or on behalf of us at the Site.
4.4 The Goods and/or Services must comply strictly with the Specification.
4.5 The Goods and/or Services must be supplied free of Defects. If any Goods and/or Services are subject to any Defects or are otherwise not in accordance with this contract, subject to clause 10.4 you must rectify the Defect at your cost promptly and in any event within 3 Business Days.
4.6 You must not, and must ensure that your Personnel do not, communicate with our client or take instructions from our client or any third party in connection with the Goods and/or Services and your other obligations under this Contract, unless we consent in writing.
5. EQUIPMENT
5.1 Unless otherwise specified in the Purchase Order, you must supply all vehicles and equipment (Subcontractor Equipment) required to perform the Services.
5.2 The Subcontractor Equipment must:
(a) meet any vehicle requirement or other Specification set out in the Purchase Order;
(b) be registered, at your expense; and
(c) be made available to us for inspection on our request.
5.3 You must, at your expense:
(a) mechanically maintain and repair your vehicles and equipment;
(b) ensure that your vehicles are roadworthy, compliant with all laws and maintained in good order and condition;
(c) ensure that the Subcontractor Equipment is maintained and presented in good and clean condition; and
(d) pay all running costs associated with the Subcontractor Equipment.
5.4 You must immediately cease using the Subcontractor Equipment if we direct you to do so because in our opinion it is unsafe to use or otherwise requires repairs, maintenance, inspection or testing.
6. INSPECTION AND TESTING
6.1 You must conduct all inspections and tests required by the Contract or to comply with Legislative Requirements.
6.2 You must ensure that we can inspect, test, and witness any test of the Goods and/or Services wherever they may be located. You must also provide or ensure that your Personnel provide unrestricted access necessary for us to carry out such inspections or witness such tests.
6.3 You will not be relieved of any of your obligations under the Contract because we have inspected the Subcontractor Equipment or the Goods and/or Services, signed a delivery slip or time sheet, or witnessed any testing prior to the supply of the Goods and/or Services.
6.4 We are entitled to reject any of the Goods and/or Services that do not comply with the Specification or the requirements of the Contract.
7. PRICE
7.1 The price for the Goods and/or Services is the price stated in the Purchase Order (Price). Unless otherwise agreed and clearly stated in the Purchase Order, the Price excludes GST but includes any other applicable taxes, customs, excise and import duties, tariffs, fees, levies, charges, costs or expenses that you incur in connection with the Contract, including transport, packing and insurance costs.
7.2 Unless otherwise agreed in writing the Price is fixed and firm, and not subject to adjustment due to rise and fall, currency fluctuation or any other reason.
8. PERFORMANCE SECURITY
8.1 If the Purchase Order specifies that you must provide performance security in the form of a cash retention, we will retain up to 10% from each payment claim until the cash retention is equivalent to 5% of the Price
8.2 Subject to our rights under the Contract, we will release one half of the security within one month after we certify the completion of the supply of the Goods and/or Services, following your written request.
8.3 The balance will be released after the later of:
(a) the expiry of any defects liability period specified in the Purchase Order; or
(b) 12 months after the completion of the supply of the Goods and/or Services.
8.4 We may have recourse to security whenever you owe us money or we have a claim against you.
8.5 Unless required by the Security of Payment Act, any cash retention will not be held on trust.
9. PAYMENT
9.1 You must claim payment for the Services by submitting payment claims to us at the times stated in the Purchase Order or, if no times are stated, monthly by the 20th Business Day of the month.
9.2 Each payment claim must comply with the following:
(a) be a tax invoice;
(b) be correctly dated;
(c) refer to the Purchase Order number;
(d) list the particular Goods and/or Services supplied;
(e) be supported by relevant records to enable us to verify the amount claimed;
(f) state that it is made under the Security of Payment Act.
9.3 You will not be entitled to payment under this Contract until you have:
(a) complied with clauses 9.1 and 9.6; and
(b) complied with all relevant obligations under this Contract, including (in relation to the final payment claim) releasing all “as constructed” drawings, warranties and manuals in the format that we require.
9.4 If you submit an invoice earlier than the time stated in the Purchase Order, the invoice will be deemed to have been submitted at the stated time for payment claims.
9.5 We will not be liable to pay for the Goods and/or Services until the Goods and/or Services have been supplied in accordance with the Contract.
9.6 If we request, you must provide additional relevant records to calculate and verify the amount stated in your payment claim, within the time requested, or where no time is specified, within 48 hours.
9.7 For projects that fall within the Security of Payment Act, within 15 Business Days of receiving the payment claim, we will:
(a) determine the amount payable;
(b) provide a progress certificate to you; and
(c) pay any undisputed amounts in accordance with clause 9.10.
9.8 Any progress certificate issued by TDL in accordance with clause 9.7(b) will:
(a) identify the payment claim to which the certificate relates;
(b) state our determination, including, for each item of the payment claim:
(i) the amount which is payable; and
(ii) any amount which is disputed and the reasons for the dispute.
9.9 Without limiting clause 9.7, we may issue a revised progress certificate at any time correcting or modifying a previous progress certificate, including as a result of the provision of information under clause 9.6.
9.10 Subject to clauses 9.3 and 9.7, we will pay you, by electronic funds transfer into your nominated bank account, the amount claimed in a payment claim in accordance with the payment terms stated in the Purchase Order or, if no terms are stated, within 25 Business Days of the payment claim being submitted.
9.11 We will not pay interest on any overdue amount unless required by legislation, in which case interest will be paid at rate set by the legislation.
9.12 We may deduct from or set off against any monies which may be, or become, payable to you any costs, expenses or damages which are due from you to us, or which we have incurred or reasonably consider we might incur, whether under this Contract or any other agreement.
9.13 Payment by us of all or any part of a payment claim is on account only and is not approval of the Goods and/or Services.
9.14 You must be registered for GST.
9.15 By accepting the Purchase Order, you agree to recipient created tax invoices. If required to do so, you must also confirm your agreement in writing.
10. WARRANTIES
10.1 You must be, and must remain, at all times during the delivery of the Services, a company duly incorporated under the Corporations Act 2001 (Cth).
10.2 You represent and warrant that:
(a) the Goods and/or Services will be supplied in accordance with all applicable laws, regulations, codes and standards;
(b) the Goods and/or Services and the Subcontractor Equipment strictly comply with the Specifications;
(c) the Goods and/or Services are free from all Defects;
(d) you will, and will ensure your Personnel will, exercise the standards of diligence, due care and skill normally exercised by a prudent and similarly qualified and competent subcontractor supplying equivalent services;
(e) the Goods and/or Services are fit for the purpose for which goods and/or services of the same kind are commonly supplied;
(f) all Personnel are appropriately qualified, competent and skilled to perform the part of the Services for which they are engaged;
(g) any equipment used by you to deliver the Services, including the Subcontractor Equipment, is in safe working condition, complies with all Legislative Requirements and will be operated by suitably qualified, licensed and accredited Personnel.
10.3 You must, at your cost, immediately rectify or replace (at our discretion) any Defective Services.
10.4 If we consider that we need to rectify or replace Defective Goods and/or Services then we may do so or engage a third party to do so, without notifying you. You must reimburse us for the full cost of that replacement or rectification.
10.5 If we elect to accept Defective Services on one occasion, that election does not oblige us to accept any other Defective Services and does not limit any of our other legal rights in respect of those Defective Services.
10.6 You consent to our assignment of any or all of the above warranties to any of our clients or related companies.
11. LIABILITY AND INDEMNITY
11.1 You are liable for, indemnify and will keep us indemnified against all Loss, and hereby release us from any claim, action, suit, proceeding or demand, arising directly or indirectly out of this Contract or the supply of the Goods and/or Services, including:
(a) death of, or personal injury to, any person;
(b) loss or damage to any property;
(c) any breach of this Contract by you,
except to the extent caused or contributed to by any wrongful act or omission by us.
11.2 To the extent permitted by law, our liability to you arising out of or in connection with the Contract is limited to the Price.
11.3 Neither of us is liable to the other for any indirect or consequential losses, including any loss of revenue, loss of profit, loss of production, loss of use of any plant or facility, business interruption of any nature, loss of business opportunity, loss of business reputation, loss of contract, payment of liquidated sums, penalties or damages or any other indirect or consequential loss.
12. TERMINATION
12.1 To the extent permitted by law, we may terminate the Contract or reduce the scope of the Goods and/or Services if you:
(a) fail to remedy any breach of your obligations under the Contract within 3 Business Days of receiving written notice from us requiring you to do so; or
(b) being a corporation, become insolvent, or have an administrator, controller or liquidator appointed under the Corporations Act 2001 (Cth), or have receivers or managers appointed; or
(c) being an individual, are unable to pay your debts when they fall due or have a trustee in bankruptcy appointed; or
(d) cease or threaten to cease to carry on business,
in which case our liability to you will be limited to payment of the Price for the Goods and/or Services supplied prior to such termination.
12.2 In addition to our other rights under clause 12, we may terminate all or any part of the Contract by written notice to you at any time for any reason, in our absolute discretion.
12.3 On receipt of notice of termination, you must:
(a) immediately cease performance of the Services to the extent specified in the termination notice;
(b) return all TDL Equipment to TDL, at the location notified to you by us; and
(c) immediately take all possible action to mitigate any costs incurred by you as a result of the termination.
12.4 If we terminate the Contract under clause 12.2:
(a) you are entitled to payment of the Price for the Services supplied prior to termination but not already paid for or any Goods ordered and not able to be cancelled;
(b) you are not entitled to the Price of the Goods and/or Services or to any compensation for that cancellation other than as specified in clause 12.4; and
(c) the maximum compensation payable under clause 12.4 arising out of the termination for convenience will not exceed the Price of the relevant Goods and/or Services.
12.5 Termination of the Contract does not affect or prejudice any of our rights that have accrued prior to the termination. Our exercise of our rights under this clause does not affect or limit our ability to exercise any other rights we may have under the Contract, at law or in equity.
13. INSURANCE
13.1 You must prior to commencing the supply of the Services and for as long as you have obligations outstanding in connection with the Services effect and maintain and ensure that all of your Personnel effect and maintain, at your own expense:
(a) all insurances specified in the Purchase Order;
(b) workers’ compensation and occupational/industrial disease and any other insurance required by any Legislative Requirement relating to your workers’ compensation liability to any person;
(c) employers’ liability/common law insurance for an amount of $50 million to cover Loss arising out of the supply of the Goods and/or Services in respect of persons employed or engaged or deemed to be employed by you;
(d) income protection and/or private accident and illness insurance to cover any of your working directors, for a period of up to 104 weeks on any one claim;
(e) general third-party public and products liability insurance covering your operations including liability arising from unregistered mechanically propelled vehicles, with a limit of liability of not less than $20 million any one occurrence and in the aggregate, naming us as principal or providing insurance for us as principal in respect of our liability arising out of your acts or omissions;
(f) an insurance policy covering the Goods while at your risk and your plant and equipment for accidental loss, destruction and damage at all times (including while in transit) and other risks as we may reasonably require from time to time; and
(g) all necessary insurance cover for all risks arising out of the performance of its obligations under the Contract.
13.2 The insurance referred to in clauses 13.1(b) and 13.1(c) must extend to indemnify us as principal and provide a waiver by the insurer of all rights of subrogation, action or relief against us.
13.3 You must give us a copy of the policy documents and certificates of currency of the insurances referred to in clause 13.1 as a condition precedent to your entitlement to:
(a) access the Site or Delivery Address;
(b) make a payment claim for payment; and
(c) payment of the Price.
13.4 If you do not comply with your obligations under clause 13, we may take out and maintain the relevant insurance and pay the premiums and the cost will be a debt due and payable by you to us.
13.5 Insurance will not limit your liabilities or obligations under the Contract.
13.6 You must notify us immediately if any incident occurs that is likely to give rise to a claim under any policy of insurance effected by you under the Contract and must keep us fully informed of all subsequent developments regarding such claim.
14. PERSONNEL
14.1 You must comply with all relevant Legislative Requirements in relation to your Personnel, including:
(a) work health and safety laws; and
(b) the Fair Work Act 2009 (Cth) and any other workplace or industrial laws concerning the employment of workers, income tax, workers’ compensation, annual leave, long service leave or any award, order, determination or agreement of a competent industrial or specialist tribunal.
14.2 You indemnify and will continue to indemnify us against any claims made by any of your officers, employees or agents in respect of any such law, award, order, determination or agreement with which you are required to comply.
14.3 We may object to any Personnel who, in our opinion, are not qualified, competent or skilled to supply the relevant part of the Goods and/or Services in respect of which they are engaged, or who engage in misconduct. You must remove and immediately replace such Personnel with a suitable replacement.
15. SITE
15.1 This clause 15 applies to the extent you or your Personnel are required to be on, or in the vicinity of, the Site.
15.2 You must:
(a) comply, and ensure your Personnel comply, with all Legislative Requirements and all policies, standards, rules and procedures in force from time to time, including in relation to HSE at the Delivery Address, at the Site or any other place where the Services are being performed;
(b) ensure that your Personnel carry photographic identification (such as a current drivers’ licence) at all times;
(c) submit and amend any HSE management plan(s) that we require (including JSAs and SWMS);
(d) attend all induction courses that we require, at your cost; and
(e) permit us to have access to your premises, documentation, data and Personnel as necessary to enable us to verify, monitor and audit your compliance with this clause 15.
15.3 You acknowledge that you will not have exclusive possession of any part of the Site and will only be granted access to the Site to the extent necessary for the performance of the Services.
15.4 You must cooperate and coordinate your performance of the Contract, and not interfere, with other contractors and persons on the Site, in accordance with clause 4.3.
16. HSE REQUIREMENTS
16.1 You must ensure that you have prepared, submitted and obtained our approval in relation to a job safety analysis (JSA) and safe work method statement (SWMS) prior to accessing the Site or commencing the Services.
16.2 Any approval of a JSA or SWMS may be subject to site-specific conditions in our absolute-discretion.
16.3 You must, and ensure that your Personnel, adhere to any site-specific permits, procedures, JSAs and other reasonable HSE requirements notified to you.
16.4 You must ensure that any Subcontractor Equipment used in the performance of the Services complies with all Legislative Requirements.
16.5 You must ensure that all of your Personnel hold any relevant industry safety training card (blue card/white card) and are equipped at all times with the following personal protective equipment, prior to commencement of the Services:
(a) safety helmet;
(b) safety footwear;
(c) hi-vis vest;
(d) safety glasses; and
(e) long sleeved shirt and long trousers.
17. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
17.1 The Subcontractor warrants that any design, equipment, methods of working and documentation used or produced by the Subcontractor in connection with the Services do not infringe any IP Right.
17.2 Ownership of all IP Rights used or created under the Contract or in the provision of the Services vests in us on creation. We grant you a non-exclusive, transferable, royalty free, irrevocable and perpetual licence to use such IP Rights to supply the Services.
17.3 You indemnify us for all loss and expense incurred as a result of a breach of this clause.
17.4 You agree that the terms of this Contract are confidential and you will not disclose any information regarding the Contract, its existence or its terms, or acquired as a result of the Contract, to any third party (including by making any media release) without our prior written consent.
18. DISPUTE RESOLUTION
18.1 If any dispute arises between you and us in any way relating to this Contract or its subject matter, the following must occur, as a condition precedent to the commencement of any litigation or arbitration:
(a) we must confer within 3 Business Days of one of us giving written notice to the other that a dispute or difference has arisen (Dispute Notice);
(b) in conferring, we will identify our dispute and what each of us says should be done to resolve the dispute;
(c) if we cannot resolve our difference or agree on a method for resolving it, we must then submit the dispute for mediation by a mediator nominated by the Resolution Institute, with the mediator’s costs shared equally between us but otherwise on terms determined by the nominated mediator.
18.2 If the dispute is not resolved within 4 weeks of the Dispute Notice either party may commence litigation or arbitration.
18.3 Nothing in clause 18.2 prevents a party from applying for urgent interim or interlocutory relief.
18.4 The costs of any litigation or arbitration under clause 18.2 are as decided in the discretion of the judge or arbitrator.
18.5 We agree that for the purposes of any adjudication under the Security of Payment Act in relation to the Contract or the Services the prescribed appointor will be the Resolution Institute.
19. GENERAL
19.1 This Contract constitutes the entire agreement between us with respect to its subject matter and supersedes all prior oral or written representations and agreements.
19.2 This Contract may only be varied in writing signed by us both.
19.3 You may not assign your rights or obligations arising under this Contract without our prior written consent.
19.4 A waiver by either of us of a breach of any term of this Contract does not constitute a waiver of any succeeding breach of the same or any other term.
19.5 If any provision or part provision of this Contract is invalid or unenforceable, that provision will be deemed deleted to the extent necessary and the remaining provisions of this Contract will remain in full force and effect.
19.6 To the extent permitted by law, Part 1F of the Civil Liability Act 2002 (WA) is excluded, including for the purposes of the arbitration of any dispute under this Contract.
19.7 Nothing in this Contract creates a relationship of employer and employee, principal and agent, partnership or joint venture between us or between us and any third party including your Personnel or other personnel or between you and any head client.
19.8 Neither of us has authority to act for or to bind or incur liabilities on behalf of the other than as expressly contemplated by this Contract.
19.9 The provisions of this Contract that are capable of having effect after the termination or expiry of this Contract, remain in full force and effect following its termination or expiry.
19.10 This Contract is governed by the laws of Western Australia. We both submit to the non-exclusive jurisdiction of the courts of Western Australia and any courts which hear appeals from those courts.
19.11 Each of us must promptly at our own cost do all things (including executing all documents) necessary or desirable to give full effect to the Contract.
20. DEFINITIONS
In these Terms and Conditions:
Business Day means a day except Saturdays, Sundays and public holidays in Western Australia and any other day that falls between 22 December in any year and 10 January in the following year (inclusive).
Defect means any aspect of the Goods or the Services not in accordance with the Contract, or which is damaged, deficient, faulty, inadequate or incomplete in design, performance, workmanship, quality or makeup and Defective has an equivalent meaning.
Delivery Address means any address for delivery stated in the Purchase Order or otherwise notified by us to you.
Delivery Date means the date for supply of the Goods or performance of the Services stated in the Purchase Order.
Dispute means a dispute or difference arising out of or in connection with the Contract.
Dispute Notice means a written notice stating that it is issued under clause 18 and that outlines the nature of the dispute.
Goods means the Goods specified in the Purchase Order and includes any incidental services required to supply the Goods.
GST has the meaning given to that expression in the GST Act.
GST Act means A New Tax System (the Goods and the Services) Act 1999 (Cth).
HSE means health, safety and environment.
IP Rights means all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trademarks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
Legislative Requirements means any applicable statutes, regulations, by-laws, orders, industrial awards, workplace agreements, proclamations of the Commonwealth, certificates, licenses, consents, permits, approvals, codes, standards and requirements of organisations.
Loss means any loss, damage, expense, payment or liability, whether direct or indirect, and includes consequential loss, damage or expense (including but not limited to loss of profit or revenue, loss of market or loss of contracts or damage to commercial reputation).
Party means TDL or the Subcontractor, and a reference to Parties is a reference to both of them.
Personnel means any person, employee, consultant or subcontractor engaged by you to provide all or any part of the Goods and/or Services on your behalf.
Price has the meaning given in clause 7.1.
Purchase Order means the written order issued by or on behalf of TDL for the supply of the Services.
Security of Payment Act means the Construction Contracts Act 2004 (WA) or the Building and Construction Industry (Security of Payment) Act 2021 (WA).
Services means the services specified in the Purchase Order and includes all necessary minor incidental services.
Site means the project site to which the Services relate.
Specification means all codes, standards, drawings materials schedules and specifications applicable to the Contract, referred to in the Purchase Order or otherwise incorporated into the Contract by reference and to be complied with by the Subcontractor.
Subcontractor means the subcontractor specified on the Purchase Order referring to or attaching these Terms and Conditions.