Standard terms and conditions of purchase
In this agreement:
1.1 Confidential Information means any documentation of information of a confidential nature supplied by either party to the other in connection with this agreement, but excludes any or information which has been previously published or otherwise disclosed to the general public or is required to be disclosed by law;
1.2 Contractor means the party, business , supplier or entity named in the purchase order to provide the works;
1.3 Intellectual Property means all rights conferred by statute, common law or equity in relation to patents, inventions, registered and unregistered designs, registered and unregistered trademarks, trade names, logos and get up, confidential information, copyright and moral rights and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
1.4 Purchase Order means the Purchase Order on the front page of these Terms and Conditions;
1.5 Terms and Conditions means these Terms and Conditions;
1.6 Works means any works, goods and/or services specified in the Purchase Order together with any additional works necessary for the performance of this agreement;
1.7 Expressions used in the Purchase Order have the same meaning in these Terms and Conditions.
In this document, unless the context otherwise requires:
2.1 a reference to this agreement means the Purchase Order and the Terms and Conditions;
2.2 a reference to a party includes its executors, administrators, successors and permitted assigns;
2.3 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
2.4 an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
2.5 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
2.6 a provision is not construed against a party only because that party drafted it;
2.7 an unenforceable provision or part of a provision may be severed, and the remainder of this agreement continues in force, unless this would materially change the intended effect of this agreement; and
2.8 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.
3.1 applies to all Works performed by the Contractor to the Council and the Contractor is deemed to have read and agreed to this agreement prior to filling any order for the Works; and
3.2 prevails over the Contractor’s terms and conditions of sale or any other documents provided by the Contractor.
The Contractor agrees to supply the Works and the Council agrees to purchase the Works on the terms of this agreement.
Unless otherwise specified in the Payment Terms, the Council must pay the price specified in the Purchase Order by cheque or electronic funds transfer within 30 days of the end of the month in which the invoice is issued by the Contractor. The invoice cannot be issued until the Works have been completed by the Contractor.
6. SERVICE STANDARDS
The Contractor must:
6.1 perform the Works in a professional and competent manner with due care, skill and diligence and within the time specified in the Purchase Order.
6.2 comply fully and promptly at its own cost with all laws, applicable standards, codes or practice, by-laws, orders and regulations at present or in the future relating to the performance of the Works and with all requirements, notices or orders in respect of anything affected by the Works;
6.3 provide at its own cost all supervision, labour, materials, plant, tools and equipment, transport and temporary works required for the performance of the Works;
6.4 be responsible for the care of the Works from the date of commencement until completion, including the care, storage and protection of unfixed items and items provided by the Council (if any); and
6.5 provide, effect and maintain all barricades, fences, signs, lighting and temporary works necessary for the protection of the Works, other property and for the safety and convenience of the public.
7. WARRANTIES BY CONTRACTOR
7.1 The Contractor warrants that the Works will:
7.1.1 be of good merchantable quality and fit for their purpose;
7.1.2 be performed using new materials, unless otherwise notified in writing by the Contractor;
7.1.3 conform with the description and the Specifications in the Purchase Order; and
7.1.4 throughout the Warranty Period, operate in accordance with the Specifications, and otherwise in accordance with the operation of similar products.
7.2 If any Works are found to be defective or do not comply with clause 7.1 .1 to 7.1.4 and the Council notifies the Contractor of the defect during the Warranty Period, the Contractor must, at its own cost, promptly rectify any defects in the Works within the Warranty Response Time.
7.3 Failing rectification by the Contractor during the Warranty Response Time, the Council may rectify defects at the cost of the Contractor.
8.1 The Contractor must maintain Public Liability insurance (minimum $20M) at all times during works and for at least six years following completion of the Works unless otherwise specified in the Purchase Order.
8.2 The Contractor must provide certificates of currency in respect of the Contractor’s Insurances before commencing the Works and when reasonably requested by the Council.
9. WORK COVER
9.1 the Contractor must comply with the Work Health and Safety Act 2012 (SA), any regulations made under it and any associated policies adopted by the Council, and must ensure that its employees and contractors comply with all laws, regulations, notices and codes of practice having application to this agreement;
9.2 the Contractor must comply with the Workers Rehabilitation and Compensation Act 1986 (SA) and any regulations made under it;
9.3 the Contractor must comply with all reasonable directions and procedures relating to security and work health and safety as required by the Council; and
9.4 the Contractor must immediately notify the Council of any incident or accident arising from the performance of this agreement, including any incident or accident involving the public.
10. CONTRACTOR INDEMNITIES
The contractor indemnifies the Council against all actions, proceedings, claims, demands, charges, penalties, expenses and all other liabilities arising from or in relation to the performance or non-performance of any of the Contractor’s obligations under this agreement.
11. INTELLECTUAL PROPERTY
11.1 Other than any drawings or specifications provided by the Council to the Contractor, the Contractor warrants that the Works will not infringe the Intellectual Property of any third party.
11.2 The ownership of Intellectual Property produced as a result of this agreement vests solely in the Council immediately on its creation.
11.3 The Contractor is granted a royalty free non-transferable non-exclusive licence to use any Intellectual Property:
11.3.1 produced as a result of this agreement; or
11.3.2 relating to the drawings and specifications or the Confidential Information provided by the Council to the Contractor; solely for the purpose of completing the Works and for no other purpose.
12. FORCE MAJEURE
No party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s reasonable control. If that failure or delay exceeds 60 days, the Council may terminate this agreement with immediate effect by giving notice to the other party.
13.1 The Council may immediately terminate this agreement by giving notice to the other party if the Contractor:
13.1.1 ceases to carry on business or becomes otherwise unable to perform its obligations under this agreement;
13.1.2 breaches a material provision of this agreement and fails to remedy the breach within a specified reasonable time after receiving the notice requiring it to do so;
13.1.3 becomes an externally-administered body corporate or an insolvent under administration or becomes insolvent (each within the meaning of the Corporations Act 2001).
13.2 Termination of this agreement under this clause does not affect any accrued rights or remedies of either party.
14. CONFIDENTIAL INFORMATION AND FREEDOM OF INFORMATION
14.1 Each party agrees that it will not use any Confidential information of the other party or allow any Confidential Information of the other party to be used for any purpose, except for the purposes contemplated by this agreement, and agrees that it will:
14.1.1 keep confidential; and
14.1.2 not use or reproduce in any form; any confidential information belonging to the other party. A party may depart from its obligations under this clause only with the written consent of the other party or as required by law or the terms of this agreement.
14.2 The Contractor consents to any disclosures made as a result of the Council complying with its obligations under the Freedom of Information Act 1991 (SA), subject to any legally required consultation.
14.3 Subject to clause 14.1, for the purposes of the FOI Act, the terms specified confidential in the Purchase Order are confidential (confidential sections):
14.4 Unauthorised disclosure of the confidential sections and their subject matter is a breach of this agreement.
15. AUDIT OF SERVICES
The Contractor must keep the Council fully and regularly informed as to all matters relating to the Works and must provide to the Council any information reasonably requested by the Council for the purposes of monitoring the performance of the Contractor’s obligations under this agreement.
All disputes or differences between Council and the Contractor must be referred to an arbitrator, agreed by the parties or in the absence of agreement appointed by the President of the Local Government Association of South Australia.
This agreement does not create a relationship of employment, agency or partnership between the parties.
18.1 Special Conditions - If there is an inconsistency between a special condition set out in the Purchase Order and the rest of this agreement, the special condition governs to the extent of the inconsistency.
18.2 Alteration - This agreement may be altered only in writing signed by each party.
18.3 Assignment - The Contractor must not assign this agreement or any right under it without the prior written consent of the Council.
18.4 Entire Agreement - This agreement
18.4.1 constitutes the entire agreement between the parties about its subject matter; and
18.4.2 supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter, with the exception being an executed contract between Council and the Contractor.
18.5 Waiver - A waiver of a provision of or right under this agreement
18.5.1 must be in writing signed by the party giving the waiver;
18.5.2 is effective only to the extent set out in the written waiver.
18.6 Exercise of power
18.6.1 The failure, delay, relaxation or indulgence by a party in exercising a power or right under this agreement is not a waiver of that power or right
18.6.2 An exercise of a power or right under this agreement does not preclude a further exercise of another right or power.
18.7 Survival - Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of this agreement, remains in force after the expiration or termination of this agreement.
18.8 Governing Law
18.8.1 This agreement is governed by the law in South Australia
18.8.2 The parties irrevocably submit to the exclusive jurisdiction of the courts in South Australia.
18.9 Ombudsman - The Contractor acknowledges that the Ombudsman Act 1972 (SA) empowers the Ombudsman to investigate matters in the public interest. The Contractor must ensure compliance with all obligations arising under that Act and all other applicable laws.
18.10 ICAC - The Contractor acknowledges and agrees that by entering into this agreement with the Council the Contractor will be considered to be a public officer for the purposes of the Independent Commissioner Against Corruption Act, 2012 (SA) (ICAC Act) and is obliged to comply with the ICAC Act and the Directions and Guidelines issued pursuant to the ICAC Act.
19.1 The total amounts payable under this agreement are inclusive of GST, if applicable.
19.2 Notwithstanding any other provision of this agreement, the Council need not make any payment for a taxable supply made by the Contractor under this agreement until the Contractor has given the Council a tax invoice in respect of that taxable supply.
20.1 A notice, demand, consent, approval or communication under this agreement (Notice) must be:
20.1.1 in writing, in English and signed by a person authorised by the sender, and
20.1.2 hand delivered or sent by pre-paid post or facsimile or electronic communication to the recipient’s address or facsimile number specified in the Purchase Order, as varied by any Notice given by the recipient to the sender.
20.2 A Notice is deemed to be received:
20.2.1 if sent by prepaid post, two business days after posting;
20.2.2 if sent by facsimile, at the time and on the day shown in the sender’s transmission report, if it shows that the entire Notice was sent to the recipient’s facsimile number last Notified by the recipient to the sender;
20.2.3 if sent by electronic communication, at the time deemed to be the time of receipt under the Electronic Transactions Act 1999 (Cth) if the notice was being given under a law of the Commonwealth of Australia
21. WORK HEALTH AND SAFETY ADDITIONAL CLAUSES
21.1 The Contractor acknowledges that the council has adopted a procedure detailing our requirements in the engagement and managing of contractors in regard to Work Health & Safety. In accordance with this procedure the Contractor must ensure that it and any sub-contractors have systems in place to manage Work Health and Safety.
21.2 The Contractor must not commence nor allow any other persons to commence work until such time as the contractor has:
21.2.1 been subject to work health & safety induction by the Council
21.2.2 has complied with any requirements before commencement as stated in the Work Health and Safety Regulations 2012
21.3 The Council is not obliged to grant access to the site, until the contractor has complied with the requirements of this clause 21.
21.4 Following induction the contractor must review and update any safety requirements or safe systems of work required under clause 21.1 and provide documentary evidence of any changes to the Council.
21.5 The contractor throughout the duration of the work will review and update any safety requirements or safe systems of work required under clause 21.1 and provide documentary evidence of any changes to the Council’s Representative.
22. FIRE DANGER
22.1 The Contractor acknowledges that the council has adopted a procedure detailing our response to days declared as severe, extreme or catastrophic fire danger days. In accordance with this procedure the Contractor must ensure that any sub-contractors have systems in place to undertake adequate risk assessments, pre-planning and make appropriate decisions to protect themselves on days which are declared severe, extreme or catastrophic fire danger days.
22.2 In the event of a severe, extreme or catastrophic fire danger day declaration, the Contractor must implement the system required by this clause.
22.3 Upon request, the Contractor must provide to the Council, a copy of any assessments or plans prepared and implemented under this clause.