Purchase order conditions

Siltech PTY LTD (“QTS”)

STANDARD PURCHASE ORDER CONDITIONS

All offers made by QTS to purchase the Goods and Services as described in the Order that are manufactured, sold or supplied by the addressee named in the Order (“Supplier”) shall be subject to these Standard Purchase Order Conditions unless otherwise agreed in writing.

1. PRICES

  1. All such prices shown in the Order are fixed and include all necessary and ancillary items including but not limited to freight, cartage, insurance, inductions, site meetings, project management, printing and use or supply of pallets and containers unless otherwise shown in the Order. No increase in prices for the Goods and / or Services that are the subject of this Order shall be allowed unless prior approval in writing is obtained from QTS.

2. GOODS AND SERVICES TAX

  1. QTS will not be obliged to pay any amount to the Supplier unless a tax invoice that complies with the GST Legislation has been issued in respect of that GST at the same time at which it receives the invoice to which that taxable supply relates. Each party agrees to do all things, including providing invoices or other documentation that may be necessary or desirable to:
    1. Enable or assist the other party to claim input tax credits to the maximum extent possible; or
    2. Itself claim all input tax credits that may be available to it in order to reduce the amount recoverable from the other party under the Contract.
  2. If the total final amount of GST payable under this Order differs from the amount paid to the Supplier in respect of GST, whether because of an adjustment event as defined in the GST Legislation, an error in calculation or for any other reason, the Supplier shall return the difference to QTS or QTS shall pay an additional amount to the Supplier, as applicable, to ensure that the total final amount of GST payable to the Supplier under this Order is equal to the total GST liability in respect of this Order.
  3. In this clause:
    1. “GST” means the tax payable on Taxable Supplies under the GST Legislation;
    2. “GST Legislation” means A New Tax System (Goods and Services Tax) Act 1999 or any related or replacement Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax; and
    3. Terms defined in the GST Legislation have the meaning given to them in the GST Legislation.

3. TRANSFERRING OF TITLE

  1. Where QTS has made progress payments to the Supplier for work completed and or materials procured by the Supplier to fulfil the Order, ownership in and title to all Works in Progress regardless of the level of completion or processing shall pass to QTS and the Supplier must clearly identify such Work in Progress as the property of QTS, however the risk remains with the Supplier until such Goods are delivered and QTS sign the delivery receipt.

4. DELIVERY

  1. All Goods must be appropriately packaged or otherwise prepared for transportation to avoid damage, to comply with delivery carrier requirements and to attract minimum transportation costs and insurance rates.
  2. All Supplier invoices, packing slips, delivery dockets, correspondence and other related documentation must clearly show the order number endorsed on the Order.
  3. The Goods shall be delivered at no additional cost to QTS to the destination shown on the Order unless otherwise specified by QTS in writing.
  4. Time shall be of the essence in delivery of the Goods on the Order.
  5. Delivery of the Goods shall deemed to not have occurred unless the Supplier obtains acknowledgement in writing by an authorised representative of QTS.
  6. QTS accepts no liability for any Goods delivered in excess of the quantity ordered or Goods delivered in excess of the quantity agreed in any delivery schedule approved by both parties.
  7. If the Supplier fails to deliver all or any of the Goods at the time or times specified in the Order or in accordance with any mutually agreed delivery schedule, then QTS in its absolute discretion, with or without prior notice, may treat the Order as having been repudiated by the Supplier and QTS shall be entitled to recover from the Supplier:
    1. An amount equal to the total profit lost by QTS on any and all contracts in which the Goods or any item forming part of the Goods were to be utilised or form part; and
    2. Any liquidated damages, costs, penalties or other expenses QTS may incur or may thereafter incur as a direct or indirect cause of such repudiation.

5. INSPECTION AND ACCEPTANCE OF GOODS

  1. The Supplier is solely responsible for controlling the quality of the Goods and shall only supply to QTS those Goods which conform to requirements of the Order and are fit for purpose. The Supplier shall make complete inspections and tests on the Goods as required by QTS and make the completed inspection and test records available to QTS upon request. Where the Order contains particular specification requirements for the Goods, the Supplier provide an endorsed Certificate of Compliance with the Goods confirming that all of the specification requirements of the Order have been satisfied.
  2. The Supplier acknowledges and agrees that the Goods delivered to QTS are accepted subject to QTS’s inspection. The provision of a delivery receipt of Goods signed by QTS, or payment in full or in part does not constitute acceptance of the Goods by QTS.
  3. Notwithstanding payment in full or in part, or provision of a delivery receipt of Goods signed by QTS, all Goods are subject to rejection by QTS and may be rejected by QTS after inspection if the Goods do not strictly comply with the requirements of the Order as determined by QTS.
  4. Any Goods returned to the Supplier as defective or otherwise outside the requirements of the Order for repair, replacement or credit are returned at the risk of the Supplier and all handling, insurance and transportation costs, including QTS’s costs of inspection, from the initial delivery of the Goods and the subsequent return shall be born by the Supplier and the Supplier shall pay to QTS any such costs and refund any payment or part-payment made by QTS in respect of the Goods.
  5. The Supplier is obliged to ensure that delivery receipts required to be completed by QTS shall be filled out and signed by QTS and the Supplier.
  6. Photos of sufficient detail to make assessment of satisfactory completion of the work undertaken by the Supplier shall be provided in electronic form to the appropriate QTS employee upon request, such that they may be able to be relayed to QTS’s Clients.

6. INSTALLATION SERVICES

  1. Any Service supplied under or in connection with this Contract shall be supplied in accordance with the highest standard of care and skill.

7. PAYMENT

  1. Payment or part-payment to the Supplier shall not constitute an acceptance of the Goods by QTS or a waiver of any of the Supplier’s warranties.
  2. Statements of all invoices in respect of Goods delivered must be provided on or before the 15th day of the month following delivery of those Goods. Any statement received after that date shall be treated by QTS as statements relating to the following month for the purpose of payment.
  3. Where the Order is more than a simple Order for the supply of Goods, QTS may require the Supplier to provide a Subcontractor’s Statement declaring that they have paid all workers compensation premiums, payroll tax, workers remuneration in accordance with the Workers Compensation Act 1987 (NSW), Payroll Tax Act 2007 (NSW) and the Industrial Relations Act 1996 (NSW) prior to providing payment.
  4. Variations to the Order shall only be accepted if instructed by QTS in writing and are conditional on QTS having the related variation approved by its Client. A notice of variation will not be accepted at or after completion of the Order or on tax invoices without prior approval.

8. CANCELLATION OF ORDERS

  1. QTS may cancel the Order in whole or in part, by notice in writing and without prejudice to any other right it may have, upon or at any time after the happening of any of the following events:
    1. Default by the Supplier in the performance or observance of any of the provisions of this Contract; or
    2. The Supplier fails to deliver the Goods within the time specified or otherwise in accordance with the Order or any delivery schedule as agreed upon by the parties; or
    3. The Supplier, if an individual, has a bankruptcy petition presented against him, or commits an act of bankruptcy, or makes a proposal for a scheme of arrangement or a composition, or has a deed of assignment or deed of arrangement made, or accepts a composition, or is required to present a debtor’s petition, or has a sequestration order made under Part X of the Bankruptcy Act 1966 (Cth), or enters into a personal insolvency agreement, or calls a meeting for the consideration of a personal insolvency agreement as defined by the Bankruptcy Act 1966 (Cth) or dies; or
    4. The Supplier, if a corporation, has a controller or administrator or liquidator appointed or enters into a deed of company arrangement with its creditors or has a receiver or receiver and manager appointed to any of its property or has a mortgagee take possession of any of its property or has a winding up order made against it.
  2. The Supplier shall not be entitled to claim any compensation in respect of or arising from any such cancellation.

9. WORKING ON SITE OR QTS PREMISES

  1. If any work necessary for fulfilling the Order is to be performed on Site, then the Supplier shall, prior to starting work, provide evidence of adequate and current Public Liability and Workers Compensation Insurance cover, and all other Insurances as reasonably required by QTS.

10. SUPPLY OF PARTS BY QTS

  1. If QTS provides to the Supplier any parts or components to be incorporated by the Supplier in the Goods, the parts or components supplied shall at all times after delivery (until acceptance of the respective Goods by QTS) be at the risk of the Supplier who shall pay the actual cost incurred by QTS in replacement or repair of the supplied parts or components, where such loss or damage arose while the parts or components were in possession of the Supplier.

11. QUALITY MANAGEMENT SYSTEM

  1. The Supplier shall at all material times operate and maintain an effective quality management system appropriate to the type of Goods and / or Services offered and / or in accordance with the specifications within the Order.

12. OCCUPATIONAL HEALTH AND SAFETY REQUIREMENTS

  1. The Goods supplied must comply with all applicable health and safety legislation, whether State or Commonwealth, and met or exceed the appropriate Australian and / or International Standard. The Supplier shall operate and maintain at all material times an effective Occupational Health and Safety (‘OHS’) management system appropriate to the type of Goods and / or Services offered and / or in accordance with the specifications within the Order.
  2. The Supplier shall comply fully and without exception with all of the requirements of QTS’s workplace and occupational health and safety and environmental controls, policies, guidelines and directions.
  3. The Supplier shall be responsible for supplying all Personal Protective Equipment (‘PPE’) to the Supplier’s employees that is necessary and appropriate to the work to be carried out.
  4. The Supplier acknowledges and agrees by its acceptance of the Order that it has satisfied itself as to the safety of the work to be carried out under this Contract.
  5. Where a Safe Work Method Statement (‘SWMS’) is required by an Occupational Health and Safety policy, or as directed by QTS, the Supplier shall comply with the QTS SWMS in its performance of the Services or optionally it shall supply and comply with its own SWMS, which must be consistent and coordinated with the QTS SWMS.
    1. Where the Supplier provides its own SWMS, the Supplier acknowledges and agrees that QTS is relying on the Supplier’s skill, expertise and judgement in the appropriateness of, and compliance with, the Supplier’s SWMS.
  6. The Supplier shall be responsible for ensuring that its employees at all times hold the current appropriate construction industry occupational health and safety cards and any site induction cards, and attend any required safety inductions.

13. ENVIRONMENTAL REQUIREMENTS

  1. The Goods supplied must comply with all applicable environmental legislation, whether State or Commonwealth, and met or exceed the appropriate Australian and / or International Standard.

14. WARRANTIES

  1. The Supplier acknowledges and agrees by its acceptance of the Order that it is aware that QTS is relying on the Supplier’s skill, expertise and judgement in the manufacture and supply of the Goods.
  2. All Goods supplied must have an applicable manufacturer’s warranty which is assignable to QTS’s customers without liability to QTS. At the request of QTS, the Supplier must assign the benefit of any warranty or guarantee that the Supplier has received from its suppliers whether under contract or by implication or operation of law. This warranty shall endure for the benefit of QTS, its successors and its assignees.
  3. The Supplier, by its acceptance of the Order, warrants that the Goods supplied are of merchantable quality and free from defects in material and workmanship, conform with the specifications provided by QTS, and are fit for the purpose for which QTS or QTS’s customers intend to use the Goods, or for the purpose for which the Goods would normally be used, such purpose being made known to the Supplier expressly or by implication.

15. INTELLECTUAL PROPERTY

  1. All drawings, blueprints, sketches, specifications, tooling and copies of any kind whatsoever supplied by QTS to the Supplier remain the property of QTS and shall not be copied or used by the Supplier for any purpose other than for fulfilling its obligations under the Order. Unless otherwise agreed, all such drawings, blueprints, sketches, specifications, tooling and copies thereof must be returned to QTS with the delivery of the Goods.
  2. All patent, design rights, trade marks, copyright, original works and any other intellectual property in any design, specification, process, method of working or other information relating to the Goods, including that provided by the Supplier to QTS associated with the supply of the Goods, shall remain the property of QTS.
  3. The Supplier agrees that it will not now or at any time in the future reproduce for or sell to any person or corporation other than QTS, whether for profit or otherwise, Goods or any part of the work in progress manufactured by the Supplier to specifications provided by QTS or its related entities. The Supplier shall not divulge to any other person or corporation any information, specifications, drawings or other intellectual property received from or provided by QTS or its related entities without the prior written consent of QTS.

16. NON-ASSIGNMENT

  1. The Supplier shall not delegate, subcontract or assign any duties, performance of any work, or any right, benefit or interest under this Contract without prior written consent of QTS.

17. INSURANCE AND INDEMNITY

  1. The Supplier shall take out and maintain workers compensation insurance and public liability insurance. Evidence of currency of insurances shall be provided to the Supplier at any reasonable time on request.
  2. If the Supplier is entitled to make a claim under any insurance policy effected by QTS or QTS’s Client, QTS shall not be liable for any excesses in connection with the claim.
  3. By its acceptance of the Order, the Supplier releases, holds harmless, indemnifies and keeps indemnified QTS, its successors, administrators and assignees, from and against all claims (whether direct, indirect or consequential):
    1. For loss or damage to persons or property, or for death or injury caused by or arising out of or in connection with any act, matter, or thing done, omitted or permitted to be done by the Supplier; or
    2. For loss of profit, opportunity, use and any and all other economic or consequential loss, including and without limitation, any loss by reason of a breach of a term or condition of the Order, or the negligence or any other act, matter or thing done, omitted or permitted to be done by the Supplier.
  4. For costs including legal fees on a full indemnity basis, loss, damages, liability, demands, suits at law or in equity for or in respect of the actual or alleged infringement of any patent, trade mark or other intellectual property right to or in respect of materials used by the Supplier in the execution of the Order, or in respect of the enforcement of any right or claim under or associated with the Contract.

18. ALTERNATIVE DISPUTE RESOLUTION

  1. A party claiming that a dispute has arisen under this Contract shall within five (5) Business Days of the dispute arising, give written notice to the other party providing particulars of the dispute and nominating a person with authority to settle the dispute and the other party shall within three (3) Business Days give written notice to the first party of its representative with authority to settle the dispute.
  2. The authorised persons shall meet at least once within ten (10) Business Days of giving the notice of dispute, in good faith and without prejudice, and seek to resolve the dispute.
  3. If the dispute is not resolved within twenty (20) Business Days of giving the notice of dispute, either party may within a further five (5) Business Days and by giving written notice to the other party refer the dispute to arbitration under the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitrations, where the arbitration shall be conducted in Sydney, New South Wales.
  4. Notwithstanding the existence of a dispute, both parties shall continue to perform their obligations under the Contract.

19. TIME BAR FOR CLAIMS

  1. Unless this Contract expressly states otherwise, QTS shall not be liable for any Claim by the Supplier arising out of or associated with the Contract, unless the Supplier has given notice to QTS in writing including to the maximum extent practicable particulars of the event or circumstances on which the claim is or will be based, the provision of the Contract or other basis for the claim or proposed claim, and the quantum or likely quantum of the claim within seven (7) days of the claim arising.
  2. Nothing in clause a limits the operation or effects of any other provision for notice, time-bar, condition precedent or limitation or exclusion clause in the Contract.
  3. Any notice to a party shall be sufficiently served by posting it by registered pre-paid mail to or leaving it at the address shown on the Order, and shall be deemed to have been received on the date two (2) Business Days after posting.

20. GENERAL

  1. The law governing the Contract and its interpretation is the law of the State of New South Wales.
  2. Unless modified in writing and signed by QTS in writing the Order, these Standard Purchase Order Conditions and Purchase Order Schedule together with the Order constitutes the entire agreement between QTS and the Supplier and supersedes all prior or contemporaneous, oral or written contracts, agreements or understandings of the parties relating to the Order.
  3. Where the Order or Purchase Order Schedule references a Head Contract, the Supplier agrees to be bound by any and all relevant terms of this Head Contract. A copy of this Head Contract shall be made available on written request to QTS. If the Supplier finds any ambiguity, discrepancy or inconsistency between this Contract and the Head Contract documents, it will give immediate written notice thereof to QTS. QTS shall direct the interpretation to be followed and any necessary correction will not vitiate this Contract for the Order.
  4. Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and may be severed and such illegality, voidness or unenforceability will not invalidate any other provision of this Contract.

21. DEFINITIONS

In this Contract, except where the context otherwise requires:

Business Day means any day other than a Saturday, Sunday, statutory public holiday in the State in which the Site is located, or the 27, 28, 29, 30 or 31 December.

Contract means these Standard Purchase Order Conditions and Purchase Order Schedule together with the annexed Order.

Claim means any action, suit, claim, proceeding, demand or loss whatsoever including without limiting the generality of the foregoing any claim howsoever arising out of, relating to or connected with the Contract including:

  1. Present, unascertained, immediate, future or contingent; or
  2. In contract or in tort including negligence or under statute or for breach of fiduciary duty or statutory duty, by reason of any other principle whether legal, equitable or statutory; or
  3. Asserted by action, claim, suit, proceeding, deduction, set-off or counterclaim or otherwise; or
  4. For breach of any provision, warranty, representation, obligation, indemnity or express or implied undertaking; or
  5. For costs whether ordered or not or assessed or taxed in relation to any proceedings or otherwise.

Completion means the stage when the Goods and Services that are the subject of the Order are substantially complete and are capable of being used for their stated or intended purpose.

Head Contract means any contract executed by QTS for the work at the Site, including all plans, drawings and specifications relating to the Head Contract Works and of which the work forms a part, a copy of which, except for prices, is available on request to QTS for inspection by the Supplier.

QTS means SiltechPty Ltd (ABN 35 091 337 521).

Order means the offer to purchase Goods and / or Services as described in the document attached to these conditions, and includes these terms and conditions upon which the Goods and / or Services are to be manufactured, sold or supplied by the Supplier to QTS.

Site means any premises to which access is provided to the Supplier by QTS.

Supplier means the addressee named in the Order.

Works means any works necessary to carry out the Order.