A. The Supplier agrees and warrants that the terms of this Agreement will be deemed to be accepted upon delivery by the Supplier of any Merchandise or labour requested by the Purchaser pursuant to the Purchaser’s Purchase Order, as defined in clause C of this Agreement (“all Supplies”).
B. This Agreement and the Terms of Supply noted herein shall remain in force until otherwise notified in writing by Mainland.
C. The Supplier further warrants that it will, subject to the terms and conditions of this Agreement, complete all Supplies whenever, wherever and as directed by the Purchaser. All such directions will be issued by the Purchaser in writing and marked “Purchase Order” (“the Purchase Order”). The Purchase Order will set out a general description of the Merchandise required (“the Supply”), the particular site address to which the Merchandise is to be supplied, the agreed rates and prices for the Supply, the date for the commencement and completion of the Supply and any other conditions that may apply to the Supply.
D. The Supplier agrees and warrants that it will be bound by the terms of this Agreement for ALL Supplies that the Supplier may provide to the Purchaser, notwithstanding that these supplies may be required at various locations and at different times.
E. This Agreement sets out all the terms on which all Supplies of Merchandise and labour are made to the Purchaser and supersedes any prior representations, negotiations, arrangements, understandings and all other communications. The terms and conditions of this Agreement shall not be varied unless expressly agreed to in writing by the Parties, or by any Contract which incorporates these Terms.
F. These Terms shall be subject to the Terms of any Contract in place between Mainland and the Purchaser, and in the event of any conflict or discrepancy, the Terms of the Contract shall prevail. In the absence of any Contract, these Terms shall form the binding Agreement between Mainland and the Supplier.
TERMS OF SUPPLY
1. Unless otherwise stated, the Supplier will complete the supply of all Merchandise described in the Purchase Order by the date(s) on which they are required by the Purchaser and that may be stated in the Purchase Order.
2. The Purchase Order is the only form which will be recognised by the Purchaser as authority for charging merchandise, work or services to its account.
3. The quantity of work or services performed or of Merchandise delivered by the Supplier to the Purchaser must not be greater than the amount specified on the Purchase Order. The Purchaser’s count will be accepted as final and conclusive on all shipments not accompanied by packing list.
4. A notice of shipping receipt must be sent to the Purchaser at the time the Merchandise is shipped which will state the number of the order, the kind of Merchandise, the Supplier’s name and the route by which the shipment is made.
5. If the Merchandise is specified on the Purchase Order to be delivered to its ultimate destination, the Supplier shall deliver the Merchandise to the Purchaser at such point, and the Supplier shall assume and bear all loss and damage to the Merchandise from any cause whatsoever until it is delivered to the Purchaser at such point. If Merchandise is specified on the Purchase Order to be delivered to the Purchaser at some point other than its ultimate point of destination the Merchandise shall be delivered by the Supplier to a common carrier at such specified point, properly consigned to the Purchaser at the point of ultimate destination, the Supplier shall assume and bear all loss and damage to the Merchandise from whatever cause until said Merchandise is delivered to such carrier, but upon delivery of said Merchandise to such carrier, any loss or damage thereof thereafter occurring shall be borne by the Purchaser. If the Supplier fails to deliver Merchandise of the quantity or quality specified within the time and under the conditions herein specified, the Purchaser may at its option cancel this order and decline to accept and pay for any Merchandise shipped, or unshipped, and upon the exercise of such option the Purchaser may buy the Merchandise elsewhere and charge the Supplier with any loss and expense incurred thereby.
6. The Supplier warrants to the Purchaser and to the owner to which the Merchandise is being furnished and/or for which the work and services covered by the Purchase Order are being performed that the Merchandise, work or services will correspond with the description of the same on any purchase order issued pursuant to this Agreement, will conform to the specifications, drawings, samples or other description furnished or adopted by the Purchaser, will be fit and sufficient for the purpose intended, will be of the quality specified (or, in the event no quality is specified, will be of the best and merchantable quality), will be free of all defects in workmanship and materials and will operate and function satisfactorily and reliably under all conditions. Approval of design by the Purchaser or acceptance of the Merchandise, work or services by the Purchaser shall not release the Supplier from its obligations under the foregoing warranties.
7. The Supplier warrants that said Merchandise is free and clear of all liens and encumbrances whatsoever and that the Supplier has a good and marketable title to the same, and the Supplier agrees to hold the Purchaser free and harmless against any and all claimants to said Merchandise.
8. The Supplier agrees that any Merchandise supplied will not infringe upon any patent, trademarks, or copyright and that the Supplier will, at its own expense hold the Purchaser harmless from and defend it against any claim, demand, damages, or liability asserted against the Purchaser on account of any claimed infringement, together with all costs in connection therewith (including legal costs).
9. The Supplier shall strictly comply with all applicable laws, ordinances, orders, rules and regulations (whether Federal, State or Local) and, upon request by the Purchaser, the Supplier shall furnish it with such evidence of compliance as the Purchaser may require at any time. Without limitation of generality of the foregoing, the Supplier shall strictly comply with all such laws, ordinances, orders, rules and regulations relating to rates of wages, hours of labor, prices and other matters which may be binding upon the Purchaser in connection with any work or contract for or in connection with which the Merchandise, work or services to be furnished by the Supplier hereunder are intended to be used.
10. In the event that any Purchase Order requires the performance or installation of work or Merchandise by the Supplier upon any property or project of the Purchaser, the following conditions shall also be applicable:
a) The Supplier shall take all necessary precautions to protect all property and persons from damage or injury arising out of its work and shall observe and comply with all fire, safety and other regulations heretofore or after prescribed by the Purchaser, Head Contractor or the owner of the project on which the work is being performed and shall be responsible for the observance thereof by all sub-contractors and all employees, agents or representatives of the Supplier and/or any such sub-contractors.
b) The Supplier shall keep all premises, all Merchandise and work, free and clear of all liens or claims and the Supplier shall promptly pay for all labour and material and if the Supplier fails to do so the Purchaser may pay the same and deduct the amount of such payments from sums due to the Supplier hereunder.
c) The work shall remain at the Supplier’s risk prior to written acceptance by the Purchaser and/or the owner of the project and the Supplier shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
d) The Supplier shall observe and comply with, to the extent required by the Purchaser, the wages, hours and working conditions established by the Purchaser on the project or required of the Purchaser by an applicable labour agreement.
e) The Supplier shall act as an independent contractor and not as the agent or representative of the Purchaser. All rights and remedies reserved to the owner under the Purchaser’s contracts with it shall apply to and be possessed by the Purchaser as well as by the owner in all dealings with the Supplier.
f) The Supplier shall perform its work in accordance with the schedules and work programmes of the Purchaser, and shall fully co-operate with the Purchaser and others engaged in the work on the project, so that the work on the entire project may be performed with the utmost speed, consistent with good practice. In the case of conflict, the Purchaser may direct the necessary co-ordination.
g) Should the Supplier or his employees or any Supplier from him be permitted to use any scaffolding or equipment or equipment belonging to or provided by the Purchaser THEN such is on the express condition that no warranty or other liability on the part of the Purchaser will be created or implied as to the condition or suitability of the said scaffolding or equipment or otherwise.
h) The Supplier shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project, clean up all refuse and debris, and leave the site of the work clean, orderly, and in good condition.
INSPECTIONS AND SITE MEETINGS
11. All Merchandise ordered pursuant to a Purchase Order is subject to the inspection of the Purchaser upon the arrival at its destination, even though payment may have been made for the same prior to such arrival. If upon inspection such Merchandise is found to be unsatisfactory, because of defective material, inferior quality or workmanship or for failure to meet any other requirements of this order, it will be returned to the Supplier and all amounts theretofore paid by the Purchaser to the Supplier on account of the purchase price, together with any costs incurred by the Purchaser in connection with the handling and shipment of Merchandise shall be repaid by the Supplier to the Purchaser. The Supplier shall not thereafter ship to the Purchaser other Merchandise to replace such unsatisfactory or rejected Merchandise unless thereafter the Purchaser shall, in writing, order such Merchandise to be replaced. The Supplier further agrees to correct and/or replace, at its own expense any failure of the items covered by this purchase order to meet the Purchaser’s requirements and/or any defect in materials and/or workmanship which may develop within (1) one year after delivery of the Merchandise to the Purchaser. The Purchaser reserves the right, even after it has paid for such Merchandise, to make a claim against the Supplier for credit on account of any Merchandise hereby ordered which does not prove to be satisfactory or which is defective.
PAYMENT CLAIMS AND PAYMENT TERMS
12. The prices of the Merchandise, work and/or services covered by any Purchase Order, as indicated on the Purchase Order shall, unless otherwise noted, include:
a) All Federal, State and other taxes, including Goods and Services Tax;
b) All charges for packing, loading and draying.
13. The Supplier shall pay before the due date all applicable sales, use, and other taxes and/or contributions of whatever kind and however imposed, now or hereafter imposed, directly and indirectly upon or measured by the Merchandise supplied or work performed under any Purchase Order and/or measured by the wages, salary or other remunerations paid to persons employed in connection with the performance of this order and the Supplier shall indemnify the Purchaser against any expense and liability in connection therewith shall make all required reports, and shall credit the Purchaser and such tax credits as the Supplier is entitled to by law in connection with this order.
14. The Supplier shall state its payment and discount terms on invoices. The discount period shall begin from date the Purchaser receives invoices or Merchandise, whichever arrives last. Delay caused by corrections of errors and omissions shall extend the discount period and shall be just cause for withholding settlement without loss of cash discount to the Purchaser.
15. Any moneys due for Merchandise, work or services furnished under any Purchase Order may, at the option of the Purchaser, be applied by it to the payment of any sums which the Supplier
may owe it.
16. As a precondition of payment, the Supplier shall provide to the Purchaser, a Statutory Declaration attesting to the Supplier’s free and unencumbered title to the merchandise, and payment of any Contractors as evidence of free and clear title, in addition to the requirements of Clause 7 of these Terms of Trade.
LIMITATION OF LIABILITY OF PURCHASER
17. The liability of the Purchaser is limited to exclude any loss arising through any act, omission or default of the Supplier, howsoever arising under the terms of the supply.
18. Agreement shall not be assigned, transferred or sub-let in whole or part by the Supplier by operation of law or otherwise unless the Purchaser’s written consent thereto is first obtained, otherwise this Agreement and any Purchase Order issued pursuant to it shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto.
INSURANCE, DAMAGE AND DEFECTS
19. The Supplier warrants that it will assume all risks in the furnishing of Merchandise and/or in the performance of the work and services required by any Purchase Order, and will indemnify, save and hold harmless the Purchaser and/or the owner to which the Merchandise is being furnished and/or for which the work and services covered by this order are being performed, against any losses, damages, liabilities and claims of any kind whatsoever which may arise in any manner whatsoever in the performance of this order including, but not limited to, losses of Merchandise covered by any Purchase Order and injuries to property and to persons, including death.
20. The Supplier warrants that it currently holds and will continue to hold all insurances that may apply to all supplies made pursuant to this Agreement and any Purchase Order, including public liability, professional indemnity and workers compensation.
21. In the event that the Supplier shall, in the performance of any Purchase Order, have in its possession property of the Purchaser, the Supplier shall be deemed an insurer thereof and shall be responsible for its safe return.
22. Whether or not the Supplier has made a claim upon a relevant policy of insurance, the Supplier shall indemnify the Purchaser against any claim made against the Purchaser of any description, whether or not the Supplier’s Insurer has accepted indemnity, the Supplier shall fully indemnify the Purchaser against any loss howsoever arising, whether direct or consequential, including any legal expenses incurred by the Purchaser in defending any such claim.
TERMINATION OF SUPPLY
23. The Purchaser may, at any time, instruct the Supplier to cease all and/or any supplies. The Supplier will not be entitled to recover loss of profit or any payment whatsoever on the part of any Purchase Order not executed at the date of cessation.
24. The Purchaser may by notice in writing terminate this Agreement. Acts of the Supplier that will constitute termination include :
a) If the Supplier fails in any respect to use diligence in proceeding with the performance of this Agreement and any Purchase Order issued pursuant to it or fails to perform any other covenants on its part to be performed hereunder.
b) If the Supplier commits on act of bankruptcy or executes a Deed of Assignment or Deed of Agreement or enters into liquidation whether compulsory or voluntary or if a Receiver of the Supplier is appointed.
c) If the Supplier fails to pay when due any charge of labour, materials, or services incurred in connection with any Purchase Order.
Such termination will not prejudice any right that the Purchaser has to recover from the Supplier damages for any breach.
25. The Supplier being a Sole Trader, or if a corporate entity by its Directors jointly and severally, guarantees the performance of the Supplier under this Agreement. Such guarantee shall extend to reimbursement of the Purchaser, for any losses sustained as a result of any act or omission on the part of the Supplier which occasions such loss.
CONSENT FOR CAVEAT
26. Where the Purchaser receives a Statement of Claim alleging any act or omission of the Supplier, the Supplier consents to the lodgement of a Caveat against any property held by the Supplier for the full amount of the claim.
27. The Supplier agrees that the Purchaser has a general right of offset in relation to any claim brought by the Supplier or any Third Party claiming from the Purchaser.
28. In case of any dispute between the Supplier and the Purchaser as to the interpretation of this Agreement or any Purchase Order issued pursuant to it or with respect to any matter arising out of or in connection with it or the performance thereof such dispute will be decided by a single mutually-appointed Arbitrator or failing agreement as to such appointment then by Arbitrators, one to be appointed by each party to such dispute or failing agreement between the arbitrators of an umpire to be appointed by them.
29. In the event of a party failing to agree on the appointment of a single Arbitrator then 14 days after request either party may notify the other of the Arbitrator appointed by it and require such other within 7 days of the receipt of such notice to appoint an Arbitrator and failing such may itself appoint the other Arbitrator.
30. Such Arbitration shall be held at a time and place within the State or Territory to which the goods are to be delivered, (“the jurisdiction”) to be fixed by the Arbitrator and the Submission and Award shall be in accordance with the provisions of the Arbitration Act then in force in the jurisdiction.
31. A notice is deemed to have been given and received:
(a) (i) if addressed or delivered to the relevant address in this Agreement or last communicated in writing to the person giving the notice;
(ii) or sent to the fax number nominated in this Agreement or subsequent alternate number advised in writing;
(b) will be served on the earliest date of:
(i) actual receipt;
(ii) confirmation of correct transmission of fax; or
(iii) 3 days after posting.
Words herein denoting persons shall also denote Companies and words denoting the singular shall include the plural and vice versa.
“Mainland” means any entity within the Mainland Group, including any specific Mainland entity named in this Agreement or any Contract entered into with the Purchaser.
“Mainland Group” means Mainland Civil Pty Ltd, Mainland Civil (NSW) Pty Ltd, Mainland Civil (QLD) Pty Ltd, Mainland Civil (ACT) Pty Ltd, Mainland Civil Investments Pty Ltd or any Mainland Holding Company.
“Merchandise” includes personal property of every type, kind and description, as specifically described on the Purchase Order.
“Contract” means the agreement entered into by the Purchaser to perform its works at a particular site or Project.