Supplier terms and conditions

1.     DEFINITIONS

In this agreement:

1.1     Confidential Information means any documentation or information of a confidential nature supplied by either of the parties to the other in connection with this agreement, but specifically excludes any documentation 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 Goods or Services.

1.3     Goods or Services means any materials, equipment, supplies, works or acts specified in the Purchase Order together with any additional Goods or Services necessary for the performance of the agreement.

1.4      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.

1.5      Local Suppliers means a supplier that has a physical business location from which the business operates, (whether leased, owned or rented) within the City of Onkaparinga.

1.6      Purchase Order means the Purchase Order provided to the Contractor to provide the Goods or Services.

1.7      Terms and Conditions means these Terms and Conditions.

2.     INTERPRETATION

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.

2.8      the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.

3.     APPLICATION

This agreement

3.1      applies to all Goods or Services provided 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 Goods or Services.

3.2      prevails over the Contractor’s terms and conditions of sale or any other documents provided by the Contractor.

3.3      where this Purchase Order relates to a contract between the Council and the Contractor, the terms of that contract apply to the exclusion of these Purchase Order Terms and Conditions.

4.     SUPPLY

The Contractor agrees to supply the Goods or Services and the Council agrees to purchase the Goods or Services on the terms of this agreement.

5.     PAYMENT

Unless otherwise specified by Council, payment terms are within 30 days from receipt of a valid invoice issued by the Contractor. Payments will be made by electronic funds transfer (EFT). An invoice cannot be issued by the Contractor until the Goods or Services have been provided.

Local Supplier payment terms are within 14 days from receipt of a valid invoice issued by the Contractor.

Invoices must be emailed directly by the Contractor to accountspayable@onkaparinga.sa.gov.au and include the following:

  • Contractor details (name, address, contact details)
  • ABN (where applicable)
  • Addressed to ‘City of Onkaparinga’
  • Invoice date (date when Goods or Services supplied/completed)
  • The word ‘Invoice’
  • Quantity and description of Goods or Services provided
  • The price and GST components
  • EFT (electronic funds transfer) details
  • Purchase Order or Contract reference (where applicable)

6.     SERVICE STANDARDS

The Contractor must:

6.1      provide the Goods or Services 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 Goods or Services and with all requirements, notices or orders in respect of anything affected by the Goods or Services.

6.3      provide at its own cost all supervision, labour, materials, plant, tools, equipment and transport required for the performance of the Goods or Services.

6.4      be responsible for the care of the Goods or Services from the date of commencement of work until completion, including the care, storage and protection of unfixed items and items provided by the Council (if any).

6.5      provide, effect and maintain all barricades, fences, signs, lighting and temporary requirements necessary for the protection of the Goods or Services, other property and for the safety and convenience of the public.

7.     WARRANTIES BY CONTRACTOR

7.1     The Contractor warrants that the Goods or Services will:

7.1.1      be of good merchantable quality and fit for purpose.

7.1.2      be performed using new materials, unless otherwise notified in writing by the Contractor.

7.1.3      conform with the description in the Purchase Order and any other specifications provided by Council.

7.1.4      operate in accordance with the specifications, and otherwise in accordance with the operation of similar products.

7.2     If any Goods or Services are found to be defective or do not comply with clause 7.1 .1 to 7.1.4 within a period of twelve (12) months from delivery of the Goods or Services, and the Council notifies the Contractor of the defect, the Contractor must, at its own cost, promptly rectify the defect.

7.3     If the Contractor fails to rectify the defect, the Council may rectify the defect and the Contractor must reimburse Council for any expenses incurred.

7.4     The Council has the full benefit of any manufacturer’s warranties that may be applicable to the Goods or Services and the Contractor must pursue any such warranties on the Council’s behalf if the Council so requests.

8.     INSURANCE

8.1      The Contractor must maintain Public Liability insurance (minimum $20M) when providing the Goods or Services and for at least six years after completion unless otherwise specified by Council.

8.2      Whenever requested by the Council, the Contractor must produce evidence to the satisfaction of the Council, of the insurances effected and maintained by the Contractor.

9.     WORK COVER

If applicable

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.

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 must indemnify the Council and its employees, officers and contractors against all claims, demands, expenses, loss or damage in respect of loss or damage to any property, or the death of or personal injury to any person, caused or contributed to by the Contractor, a breach by the Contractor of this agreement, a wilful, unlawful or negligent act or omission of the Contractor, and any claim action or proceeding by a third party against the Council or its employees officers and contractors caused or contributed to by the Contractor.

This indemnity is reduced by the extent to which the Council contributes to the event giving rise to the claim for the indemnity.

11.   INTELLECTUAL PROPERTY

11.1      The Contractor grants the Council a non-exclusive, perpetual, royalty-free, irrevocable, transferable licence (with the right to assign and sub-license) to use the Contractor’s Intellectual Property produced as a result of this agreement.

11.2      The Council grants the Contractor a non-exclusive, royalty-free, revocable, non-transferable licence to use the Council’s Intellectual Property to the extent required to perform the Contractor’s obligations under this Purchase Order.

11.3      The ownership of Intellectual Property produced as a result of this agreement vests solely in the Council immediately on its creation.

12.   FORCE MAJEURE

If a Force Majeure Event causes delay or failure by a party to perform its obligations under this agreement:

12.1      neither party is liable for such delay or failure.

12.2      all obligations of a party under this agreement are suspended until the Force Majeure Event ceases to apply.

12.3    if a delay or failure under this clause exceeds 60 days, the Council may immediately terminate this agreement by written notice to the Contractor.

13.   TERMINATION

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 seven days or any other reasonable period specified after receiving a 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;

14.1.2      take reasonable steps to ensure that the party’s officers and employees do not disclose to a third party;

14.1.3      maintain proper and secure custody of; and

14.1.4      not use or reproduce in any form;

any Confidential Information belonging to the other party. Any departure from a party’s obligations pursuant to this clause may only be with the written consent of the other party or as required by law or the terms of this agreement.

14.2      The Consultant consents to any disclosures made as a result of the Council complying with its obligations under the FOI Act, subject to any legally required consultation.

14.3    Unauthorised disclosure of any Confidential Sections constitutes a breach of a party’s obligations under this agreement.

15.   AUDIT OF SERVICES

The Contractor must keep the Council fully and regularly informed as to all matters relating to the Goods or Services 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.

16.   DISPUTES

16.1      A party must not commence arbitration or court proceedings (except for urgent equitable or injunctive relief) in respect of a dispute under this agreement unless it first attempts to resolve the dispute in good faith by negotiation and mediation.

16.2      If unable to resolve the dispute by negotiation and mediation, the matter may be referred to an arbitrator:

16.2.1    agreed by the parties; or

16.2.2     an arbitrator nominated by the Chairperson of the South Australian Chapter of The Institute of Arbitrators and Mediators Australia or the Chairperson’s nominee.

17.   RELATIONSHIPS

This agreement does not create a relationship of employment, agency or partnership between the parties.

18. MISCELLANEOUS

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 approved 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; and

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.

18.11     Working with Children and Police Checks - If requested by Council, the Contractor will provide evidence of a current Working with Children Check or current Police Check (National Police Certificate) for any person employed by the Contractor or performing work on behalf of the Contractor.

19.  GST

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. NOTICES

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 electronic communication to the recipient’s postal or email address 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 hand delivered, on delivery;

20.2.2    if sent by prepaid mail, five business days after posting (or ten business days after posting if posting to or from a place outside Australia);

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.

23. VARIATIONS

23.1      All variations must be approved by the Council in writing.

23.2      The Contractor expressly acknowledges and agrees that it is not entitled to:

23.2.1      carry out any works pursuant to a proposed variation unless it has been approved by the Council in writing; and

23.2.2      an adjustment to the Purchase Order sum or any other claim for any works carried out pursuant to a variation which has not been approved by the Council in writing.