Below you’ll find all the information for Aquacell suppliers. Please contact us if you have any questions.
Revision Date: September 24, 2013.
Purchase order general terms and conditions for goods and/or services
In this Order, where the context permits:
1.1. “Company” means Aquacell Pty Ltd (ABN 79 072 487 015) trading as Aquacell and its related bodies corporate (as defined by the Corporations Act 2001;
1.2. “Confidential Information” means all information provided by the Company in respect of the provision of the Supplies, including, without limitation, designs, specifications, formula, technical information, patterns and drawings;
1.3. “Goods” means any goods, materials, supplies or plant to be supplied by the Vendor pursuant to this Order;
1.4. “GST” means the Goods and Services Tax as provided for under the GST Law;
1.5. “GST Law” means the same as “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
1.6. “Intellectual Property” means all rights conferred by statute common law or equity in or in relation to copyright, trade marks, designs, patents, circuit layouts, inventions and other results of intellectual activity in the industrial, commercial, literary or artistic fields, whether registered or unregistered and whether registrable or not;
1.7. “Services” means any services provided by the Vendor pursuant to this Order;
1.8. “Supplies” means Goods or Services or both (as the context requires);
1.9. “Tax Invoice” has the same meaning as provided for under the GST Law;
1.10. “Order” means the agreement between the Company and the Vendor for provision of the Supplies as set out in this document; and
1.11. “Vendor” means the vendor referred to in this Order.
2. OFFICIAL ORDERS
The Company will not be bound by any Order unless it is issued on the Company’s official order form and duly signed. The terms and conditions set out in this Order will be deemed to have been accepted by the Vendor upon receipt of the Supplies, or earlier if the Vendor confirms or accepts this Order in any other manner. Any Goods delivered which are not covered by an Order or any written variation may be returned at the Vendor’s expense and risk.
The purchase price payable for the Supplies is the price stated on this Order. Unless otherwise stated, the purchase price of the Supplies must be firm, must not be subject to any variations without the Company’s prior written approval and must be expressed in Australian dollars.
4. PAYMENT, INVOICING AND REPORTING
Payment will be made by electronic funds transfer on terms of 60 days end of month from the date the invoice is received by the Company, unless prior written approval is given by the Company to vary from this term. Upon delivery or receipt of the Supplies, the Vendor must provide the Company with a detailed invoice which includes the Order number, release number and EFT payment details or other reference numbers of the Supplies (if any); the particulars required by the GST Law for the invoice to constitute a Tax Invoice and the Company to obtain an input tax credit for any GST paid (or alternatively, to issue a separate tax invoice or adjustment note), with the amount of GST liability listed as a separate item; and any other details required by this Order. At a minimum if the invoice cannot be provided upon receipt of the Supplies, a delivery note must be provided with the Supplies and an invoice must follow as soon as possible after delivery or receipt of the Supplies. The Company may require the Vendor to submit a progress report or report of compliance with this Order.
5.1. PACKAGING – Goods must be adequately packed to avoid damage during transit, delivery, loading or unloading, having regard to the road and climatic conditions through which the Goods will pass whilst being transported. Packages and/or loose pieces must be clearly marked, as shown on the face of this Order and must indicate gross weight. The Vendor must label all packages in accordance with the requirements of all relevant laws.
5.2. DANGEROUS GOODS – All Goods which are dangerous or hazardous Goods must be clearly marked with all or accompanied by information required by any relevant legislation (including, but not limited to, the UN Number, Class Number and the Packing Group) and must be accompanied by the appropriate manifest material safety data sheet and/or emergency procedure guide. Goods must not contain arsenic, asbestos, benzene, carbon tetrachloride, lead, cadmium, chemicals restricted under the Montreal Protocol or other chemicals notified by the Company unless the Company consents in writing. Each chemical contained in the Goods must be listed on any governmental list of notifiable or registrable substances on which the chemical is required to be placed in order to be manufactured in, sold in or imported into Australia (or any other jurisdiction which the Company notifies to the Vendor).
5.3. PLANT – No Plant (within the meaning of the Occupational Health and Safety (Plant) Regulations 1995 (Cth) will be accepted or deemed to be accepted by the Company under any circumstances unless the Vendor has complied with those Regulations with respect to the Goods.
5.4. DELIVERY – All Goods must be delivered free of carriage and handling charges to the place of delivery specified in this Order and on the date of delivery specified in this Order, unless otherwise agreed by the Company and the Vendor in writing. The Vendor must be accountable for any additional freight charges arising from the Vendor’s failure to follow shipping instructions specified in this Order.
5.5. TITLE AND RISK – Subject to Clause 5.6, title and risk in the Goods must pass to the Company upon delivery of the Goods in accordance with Clause 5.4 and acceptance of the Goods by the Company. Without prejudicing any right of rejection in Clause 5.6, where any part payment for the Goods is made by the Company, title to and property in the partly completed Goods and any materials and parts used in their manufacture or supply passes to the Company.
5.6. INSPECTION AND REJECTION OF GOODS – All Goods ordered are subject to inspection by the Company upon arrival at the ultimate destination. Even though payment may have been made for the same prior to such arrival, if, upon inspection (in the sole discretion of the Company) the Goods fail to meet any requirements of this Order the Company may require the Vendor to make good the loss, damage or defect in the Goods to the Company within 5 days at no cost to the Company or reject the Goods. The Company reserves the right, even after it has paid for such Goods, to make a claim against the Vendor on account of any such Goods hereby ordered which do not prove satisfactory or are defective or damaged. The Company or its representative may inspect the Goods, and any work performed during their manufacture, engineering or installation, before delivery of the Goods and the Vendor must give the Company access to its premises to do so. Inspection or examination (even if the Goods are satisfactory) of the work or the Goods will not be deemed to be an acceptance of the Goods by the Company. If there is a deficiency in the quantity of Goods ordered, the Company has the right to notify the Vendor within 5 days of delivery (and the Vendor must promptly and at its own cost deliver the remaining amount of the Goods to the Company) or require the Vendor to credit the Company for the amount of the deficiency.
6. PROVISION OF SERVICES
The Vendor must ensure that the Services are provided to a high standard; provide the Services in accordance with any timelines specified in the Order or otherwise agreed by the Company and the Vendor and, in any event, in a manner which is timely and satisfactory to the Company; give a high priority to the Company’s requests and needs; ensure that any product in relation to which Services are being provided maintains interoperability with other products and systems; observe and ensure the Vendor’s employees and authorised agents observe the Company’s reasonable directions and requirements relating to the provision of the Services, including any procedures to be followed in providing the Services; and ensure that the Services are only provided by employees of the Vendor, unless the Company provides written consent to the contrary.
Time is of the essence in the performance of the Order by the Vendor. The failure by the Vendor to perform any of its obligations under this Order on or before the time specified in this Order gives the Company the right, in addition to any other right, to cause the Vendor to do whatever is necessary to expedite the provision of the Supplies to occur on or as close to the proposed supply date as possible, at the Vendor’s expense, including the payment of premium freight charges in relation to Goods.
8. COMPANY’S RIGHT TO ALTERNATIVE SUPPLY AND NON-EXCLUSIVITY
Without limiting Clause 7 or 5.6, if the Vendor fails to provide Supplies by the specified date, or provides any Supplies which (in the sole discretion of the Company) do not comply with any requirements of this Order, the Company may purchase replacement goods or services from a third party and charge the Vendor with the difference (if any) between the cost of such goods or services and the purchase price specified in this Order. Nothing in this Order will prevent the Company from obtaining goods or services, including goods or services similar to that provided by the Vendor, from another vendor.
9. VENDOR’S WARRANTIES
9.1. GOODS – The Vendor warrants that the Goods are new (unless otherwise specified); correspond with the description in this Order and any specifications or samples; are free from defects in materials, workmanship and design; are of merchantable quality; are fit for the Company’s purpose or, if the Company’s purpose is not known, for the purpose for which the Goods are commonly used; and are free and clear of all liens, encumbrances, reservations of title and other restrictions whatsoever and that it has good and marketable title to the Goods.
9.2. SERVICES – The Vendor warrants that it has the necessary skills and know-how to provide the Services; that the Services will be provided with due care and skill and in a timely and diligent manner; and will be fit for the Company’s purpose or if the Company’s purpose is not known, for the purpose for which the Services are commonly supplied.
9.3. SUPPLIES – The Vendor warrants that the manufacture, sale or use of the Supplies does not and will not infringe any Intellectual Property right conferred on any person by a law of Australia or any other country. The Vendor warrants that no conflict of interest exists or is likely to exist in provision of the Supplies. The Vendor warrants that it will take appropriate actions to provide a safe and healthy workplace and to protect local environmental quality and no Supplies have been or will be produced utilising forced, indentured or convict labour or utilising the labour of persons under the minimum working age, or in violation of minimum employment conditions in, the country of manufacture. This Order does not exclude or in any way limit other warranties provided in this Order or by law. All usual and trade warranties must be obtained for the Supplies as well as any warranties which the Company may specifically request.
10. COMPLIANCE WITH LAWS
The Vendor must ensure that it and all of its suppliers comply with all relevant laws and regulations in carrying out this Order, including laws in the Vendor’s jurisdiction and all international laws.
11. INDEMNITY AND CLAIMS
The Vendor must indemnify the Company for any loss, damage, expense, claim or liability suffered or incurred by the Company, whether consequential or otherwise, as a result of manufacture or provision of the Supplies or the breach by the Vendor of any of the warranties contained in Clause 9 or any requirements of this Order. If the Company has a claim under or in connection with this Order for an amount on which the Company must pay GST, the claim is for the amount plus that GST. The amount of the indemnity shall not exceed the total order, contract, invoice or transaction value (which ever is the greater) covered by these terms and conditions. This Clause survives the termination or completion of this Order.
The Vendor must maintain adequate insurance for the manufacture and supply of the Supplies including, without limitation, public liability, workers’ compensation (including common law liability), automotive, freight liability and product damage insurance upon such terms and for such amount as are reasonable in the circumstances.
13. CONFIDENTIAL INFORMATION
All Confidential Information will remain the property of the Company and must be returned in good order and condition with the Goods (if any) on completion of this Order. The Vendor agrees to replace free of charge any Confidential Information of the Company which is lost damaged or destroyed whilst in the possession of the Vendor. The Vendor must maintain in strict confidence all Confidential Information and must notify the Company immediately of any breach and assist the Company as required to remedy any breach. The Vendor must limit disclosure of any Confidential Information of the Company only to its employees and agents who are required to have access to it for the performance of this Order and must ensure it is only used for the purpose of this Order. The Vendor must not without the prior written consent of the Company disclose to any third party the fact that it provides Supplies to, or has any relationship with, the Company, including without limitation, the terms of this Order. This Clause survives the termination or completion of this Order.
14. PROPERTY AND INTELLECTUAL PROPERTY
Any tools, materials or equipment belonging to the Company or paid for by the Company and Intellectual Property owned by the Company remains the property of the Company, must not be used by the Vendor without consent and must be returned to the Company on request. Any Intellectual Property developed by the Vendor pursuant to this Order belongs to the Company and the Vendor is granted a licence to use it for the purposes of this Order only.
15. PROTECTION/SECURITY OF DATA BASE
The Vendor must ensure that the Goods or the Vendor’s provision of the Services do not introduce errors into the Company’s data and information systems. If errors are introduced, the Vendor must indemnify the Company for the cost of remedying any such errors.
16. ALTERATION OR CANCELLATION
The Company may at its discretion, alter, cancel or suspend the Order or any unfulfilled part of the Order and the Company must not be liable for any loss, damages, costs or expenses howsoever arising. The liability of the Company to the Vendor must be limited to payment for Supplies delivered to or received by the Company.
The Company may terminate this Order immediately on written notice to the Vendor if the Vendor breaches this Order and the breach is not remedied within 5 days of notification to do so or if the Company is unable to pay its debts when they fall due or resolves that it be wound up or an administrator, receiver, liquidator or provisional liquidator is appointed with respect to the Company or its assets or the Company enters into an arrangement with its creditors, or the Company proposes to do any of those things.
18. LIABILITY OF COMPANY
The Company is not liable for any injury, damage or loss sustained by the Vendor or its employees or agents whilst on the Company’s premises or at any place of delivery or elsewhere and the Vendor must indemnify the Company against any claim, cost or demands in regard to such injury, damage or loss arising out of or incidental to the performance of the Order.
The Vendor must not claim any liens, attachments or similar claims in connection with the Supplies and must defend and indemnify the Company against any and all liens, attachments or other similar claims arising out of or in connection with this Order.
20. GOODS AND SERVICES TAX
This Clause applies if the Vendor is or may become liable to pay GST in relation to any provision of Supplies under this Order. Words defined in the GST Law have the same meaning in this Order. The purchase price payable for Supplies under this Order is exclusive of GST. To the extent that the Company is able to obtain an input tax credit for any GST, and subject to receipt of a Tax Invoice, in addition to paying the purchase price the Company must pay to the Vendor an amount equal to any GST payable for any taxable supply by the Vendor to the Company in connection with this Order. Amounts payable under this Order must be adjusted to reflect the benefit of any reduction in the Vendor’s costs relating to that supply resulting from the abolition or reduction of any existing taxes. Any such adjustment will be effective as of the date of the relevant reduction in the Vendor’s costs. The Vendor must promptly create an adjustment note for, or apply to the Commissioner for, a refund of, and refund to the Company, any overpayment by the Company for GST.
21. SET OFF
Any amount payable by the Vendor to the Company or any amount to be borne by the Vendor under this Order (including under Clauses 5.4, 7, 5.6 and 11) may be set off by the Company against any amount owing by the Company to the Vendor and may be recovered by the Company as a debt due to the Company.
22. SUBCONTRACTING AND ASSIGNMENT BY VENDOR
The Vendor must not assign its rights or obligations in relation to this Order without the prior written consent of the Company. The Company’s consent to the Vendor subcontracting its rights or obligations does not relieve the Vendor of any of its obligations contained in this Order or in law. If any subcontract is entered into, the Vendor must ensure that the subcontractor complies with the terms of this Order and indemnifies the Vendor in the terms stated in clause 11.
23. APPLICABLE LAW
The parties accept the laws of the State of New South Wales as the proper law of this Order and the parties agree to submit to the jurisdiction of the Courts of the State of New South Wales.
This Order constitutes the entire agreement applicable to the Supplies and may not be modified except by written agreement of the parties. Without limiting the foregoing, the terms and conditions of purchase as stated in this Order govern in the event of conflict with any terms of the Vendor provided at any time and are not subject to change by reason of any written or verbal statements by the Vendor or by any terms stated in the Vendor’s acknowledgement, unless the same are accepted in writing by the Company. No waiver of a breach of any provision of the Order will constitute a precedent or a waiver of any succeeding or other breach of the same or any provision of the Order or any other order between the Company and Vendor. Every provision of this Order is severable from the others.