Terms and Conditions of Purchase Order (“Conditions”)
1.
Parties
The parties to this Agreement are Sydney Olympic Park Authority ABN 68 010 941 405 (our, us, we)
as the buyer and the person or organisation named as supplier in the Purchaser Order (and, where
the context permits, includes any of its officers, agents and contractors) (you, your).
2.
Definitions
In this Agreement, unless the contrary intention appears:
“Agreement” means the Purchase Order and these Conditions;
“Delivery Time” means the date and, if applicable, time of delivery of the Goods, or completion date
(including milestones) for supply of the Services, stated in the Purchase Order or other instruction from us;
“Defective” means Goods and Services (or any part of them) which do not conform with this Agreement,
breach any of the warranties in clause 12 (Guarantees/Warranties), or are damaged, faulty, inadequate or
incomplete;
“Goods” means the goods, materials, plant, machinery or equipment stated in the Purchase Order;
“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended and includes
any rulings and determinations;
“Liability” means liability for death of or bodily injury to a person, and loss or damage to third party property;
“Loss” means any loss, liability, actions, claims, demands, damages, costs and expenses;
“Premises” means that part of our land or premises used in relation to the Supply;
“Price” means the price stated in the Purchase Order which includes all taxes, duties, costs, charges
(including any delivery, packaging, carriage, shipping and insurance costs) but excludes GST;
“Purchase Order” means the purchase order for the Supply issued by us;
“Services” means the services, labour, installation or technical advice stated in the Purchase Order;
“Supply”/“Supplies” means the supply of Goods or Services under this Agreement;
“Warranty Period” means, for Goods – the manufacturer or supplier guarantee or warranty period (or term
implied by law) or a period of 24 months from the Delivery Time whichever is the longer; and for Services – a
period of 12 months from the date the Services are completed.
3.
Agreement
(a)
This Agreement represents the entire agreement between the parties and supersedes any
previous negotiations, representations, warranties or statements between the parties.
By accepting the Purchase Order and delivering the Supplies, you agree that this Agreement
applies to the exclusion of any other terms and conditions including any supplied with the
Supply on any letter, quotations, tender, invoices, delivery note or other document, which has
no legal effect and does not form part of this Agreement.
If the Purchase Order relates to a Supply under a separate written contract between the
parties, the terms of that other contract prevail over this Agreement, to the extent of any
inconsistency.
(b)
(c)
4.
Price, GST and withholding tax
(a)
Subject to this Agreement, we agree to pay the Price as a fixed price as stated in the
Purchase Order. All prices stated in the Purchase Order include delivery and any other
charges for the Supply to the nominated delivery point. You must not charge additional fees
unless agreed by us.
Terms in this clause reflect the meanings in the GST Law. Unless otherwise expressly stated:
(i) the Price and any other sums payable under this Agreement are exclusive of GST;
(ii) if GST is payable on a taxable supply under this Agreement, the recipient must pay the
supplier an amount equal to the GST payable on that taxable supply in addition to the
amount of that taxable supply, on receipt of a valid tax invoice from the supplier;
(iii) the supplier must provide the recipient with all documentation required to claim any
input tax credit for or in relation to any GST payable under this Agreement;
(iv) if you have no ABN, you must give a completed Australian Tax Office “Statement by a
Supplier” form to us. We will deduct withholding tax at the rate of 48.5% from the
payment if the required information is not provided.
(b)
5.
Terms of payment
(a)
Unless otherwise stated in the Purchase Order or agreed to by us in writing:
(i) each invoice must contain the Purchase Order number, description of the Supply, the
Price and the amount of any GST;
(ii) you agree to invoice us on or after delivery of any Goods, or monthly in arrears for any
Services (or period otherwise agreed);
(iii) we will make payments to you within 30 days of receipt of a valid invoice issued in
accordance with clause 4(b) (Price, GST and withholding tax)), or within 14 days of
receipt of a valid tax invoice, if you have not given us a valid tax invoice prior to the due
date for payment of the Price;
We will only make direct credit payments to accounts held with Australian financial
institutions.
Payment of all or part of the Price is without prejudice to any right of rejection or termination
we may have under this Agreement.
(b)
(c)
6.
Supply of Goods and Services
(a)
You must deliver the Goods and Services in accordance with this Agreement to the delivery
address stated in the Purchase Order by the Delivery Time, or as reasonably specified by us
in writing to you.
The Delivery Time is of the essence. If you fail to deliver the Goods or perform the Services
by the Delivery Date, we may terminate the Purchase Order under clause 13(a)(ii) or
clause 13(a)(iii) (Termination) (as applicable).
Subject to clause 7(a)(i) (Defective Goods and Services), title to and risk in the Goods passes
to us after delivery.
You must promptly notify us when the Services are completed. If we reasonably consider that
the Services are not complete, we will notify you of the reasons why we consider that the
Services are not complete and the date by which you must complete them.
We will return all oversupplies against this Agreement at your expense.
(b)
(c)
(d)
(e)
7.
Defective Goods and Services
(a)
If we reasonably determine that any Goods are Defective:
(i) prior to paying for the Goods, we may accept them, or reject them and return them to
you or require you to collect them at your risk and expense, and we will not be liable to
pay for any Defective Goods returned to or collected by you under this clause;
(ii) during the Warranty Period, without prejudice to any other rights we may have under
this Agreement, you must promptly repair or replace the Defective Goods at your own
cost, or pay us the cost of having the Defective Goods repaired or replaced.
If we reasonably determine that any Services are Defective during the Warranty Period,
without prejudice to our other rights under this Agreement, we may require you to re-perform
or remedy the Defective Services at your risk and expense, or terminate the Purchase Order
under clause 13(a)(ii) or clause 13(a)(iii) (Termination) (as applicable) and claim damages for
any Loss incurred by us (in which case, you must repay to us any part of the Price already
paid, and if you do not, such amount is recoverable from you as a debt due to us).
(b)
8.
Intellectual property rights
You warrant that you will not breach any patent, trade mark copyright or other intellectual property
rights in any materials provided or available in relation to the Supply.
9.
Indemnity
You indemnify us, and our officers, agents and contractors, against any Loss which we pay, suffer,
incur or are liable for in connection with the supply of the Goods and Services as a result of your
breach of your obligations under this Agreement or failure to comply with any law you must comply
with in relation to the Supply or this Agreement; the death of or injury to persons or loss of or damage
to property (including our property) in relation to this Agreement; and any negligent fraudulent or
willful act or omission by you (except to the extent to which such Loss is caused by our negligence).
10.
Insurance
You must take out and maintain for the term of this Agreement (and produce evidence of the
currency of such insurance policies and the level of any excesses / deductibles, where applicable,
when reasonably requested by us):
(a)
broadform public and product liability insurance for at least A$20 million by an approved
insurer;
(b)
contract works insurance for any works conducted by you at the Premises;
(c)
motor vehicle insurance for at least A$20 million;
(d)
workers compensation (and you must ensure that your contractors maintain the same) and
other insurance required by law or that is prudent to have in relation to the Supply.
11.
Statutory, health, safety and environmental requirements
You must ensure that in the delivery of the Goods or performance of the Services you comply with the
Protection of the Environment Operations Act 1997 (NSW) and other relevant environmental legislation,
the Work Health and Safety Act 2011 (NSW) (WHS Act), Work Health and Safety Regulation 2011
(NSW) (WHS Regulation) (together the WHS Law) (all together referred to as the HSE Law), including
but not limited to you:
(a)
where applicable, complying with WHS Law requirements in relation to electrical work on
energised electrical equipment, high risk construction work-safe work method statements,
and providing safety data sheets in English when a hazardous substance is first used;
(b)
ensuring any contractor, subcontractor and consultant and all persons for whom you are
responsible or over whom you are capable of exercising control, complies with the
requirements referred to in this clause 11 and respective obligations under the HSE Law;
(c)
complying with your obligation under the WHS Law to consult, cooperate and coordinate
activities with all other persons who have a work health and safety duty in relation to the
same matter (including with us, if we have a duty in relation to the same matter under
WHS Law);
(d)
complying with our reasonable directions following a perceived breach of the HSE Law;
(e)
not doing anything or failing to do anything that would cause us to breach the HSE Law;
(f)
having in place systems to assess and eliminate risks and hazards at the Premises and not
contaminate the Premises, including a risk management plan incorporating a work health
safety plan prior to commencing any work at the Premises; ensuring that where risk and
hazards cannot be eliminated, the risks and hazards are adequately controlled; providing
appropriate training and supervision to all persons employed or engaged by you at the
Premises or for processes and materials which are relevant to the Supply;
(g)
complying with our environmental policies and guidelines (available on our website:
http://www.sopa.nsw.gov.au/resource_centre/publications);
(h)
immediately reporting to us all incidents at the Premises involving injury to any person, harm
to the environment or damage to property that occurs while delivering the Goods or
performing the Services, and providing written notification of any such incident to us within
24 hours of the incident;
(i)
when required by us, providing evidence of compliance with this clause 11.
12.
Guarantees/Warranties
(a)
The Supply must be of the qualities and standards specified in the Purchase Order, must
conform in all respects to any sealed patterns, specifications, plans, drawings, samples and
other particulars specified on the Purchase Order, and where applicable must comply with
Australian Standards.
You guarantee that the Supply:
(i) if Goods, is new, of merchantable quality, is fit for the intended purpose for which it is
sold, is packaged to protect against damage during handling, transit and storage, is
delivered by you with due care, diligence and skill reasonably expected for similar
items;
(ii) if Services, is performed with due skill and case in accordance with this Agreement and
appropriate industry or professional standards.
(b)
13.
Termination
(a)
Without prejudice to any other rights or remedies we may have under this Agreement or
otherwise, we may, by notice in writing to you, terminate the Agreement if you:
(i) become insolvent or bankrupt;
(ii) breach any term of this Agreement which, in our reasonable opinion, is not capable of
remedy;
(iii) breach any term of this Agreement which is capable of remedy, but you do not
commence to remedy the breach within 7 days of written notice from us requiring you to
do so, or the breach has not been completely remedied within 30 days of that notice;
(iv) have not yet delivered the Goods, commenced the Services or complied with Delivery
Times for performance of the Services.
Subject to clause 13(c), if we terminate the Purchase Order, you will be responsible for any
costs associated with any returned Goods (such as freight, packing and other such costs) or
Services which are not completed.
If we terminate the Purchaser Order under clause 13(a)(iv), you must immediately do
everything possible to mitigate any costs incurred by you as a consequence, and our liability
will be limited to the direct costs you reasonably incur to the date of the termination and which
are supported by evidence substantiating such costs.
(b)
(c)
14.
Miscellaneous
(a)
This Agreement will be governed and construed in accordance with the laws of New South
Wales, Australia.
This Agreement may only be varied by agreement in writing signed by both parties by its duly
authorised representative.
You must not assign this Agreement or any part of it without our prior written consent.
Failure by us to insist on strict performance of any term, warranty or conditions of this
Agreement will not be taken as a waiver of any of our rights, and no waiver will be taken as a
waiver of any subsequent breach of any term, warranty or condition.
You acknowledge that we may have reporting obligations under the Government Information
(Public Access) Act 2009 (NSW) (GIPA Act) in relation to this Agreement, and you must
provide all reasonable information to us to enable us to comply with the GIPA Act, where
applicable.
This Agreement will not unlawfully restrict or affect our unfettered discretion to exercise any
of our functions or powers granted under the Sydney Olympic Park Authority Act 2001 (NSW)
or any other law, such law prevailing to the extent of any inconsistency with this Agreement.
(b)
(c)
(d)
(e)
(f)
15.
Accounts for payment
All statements and accounts for payment are to be submitted to:
Accounts Payable, Sydney Olympic Park Authority,
Locked Bag 3, Sydney Olympic Park NSW 2127
[email protected]
Version 01/07/13