1. Definitions and Interpretation
In this Agreement, unless the context requires otherwise:
Agreement means this agreement, comprising the Specific Terms and the General Terms;
Business Day means a day (other than Saturday or Sunday) on which registered banks are open for business in Australian States or Territories
Commencement Date means the commencement date specified in item 1 of the Specific Terms;
Deliverables means the goods and/or services specified in Item 3 of the Specific Terms or in any Order Form and shall include, where relevant, any services to be performed by or on behalf of the Supplier in providing the Deliverables or otherwise in relation to the fulfilment of the Supplier’s obligations under this Agreement;
Delivery Point means the place for delivery of the Deliverables specified in item 10 of the Specific Terms or such other delivery point that is agreed to by the Supplier and the Purchaser for a specific delivery as specified in an Order Form;
Force Majeure Event means an event or circumstance beyond the reasonable control of the Supplier or the Purchaser, which results in or causes the failure of the Supplier or the Purchaser respectively to perform any of its obligations under this Agreement. Such events may include, but are not limited to:
- acts of God;
- strike, lockout or other industrial disturbance;
- acts of a public enemy, declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, acts of vandalism, epidemics or disease;
provided that lack of funds will not be considered a Force Majeure Event;
General Terms means these general terms;
GST has the meaning given in the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Insolvency Event means in respect of a Party to the Agreement (other than for the purpose of solvent reconstruction or amalgamation):
- a receiver, receiver and manager, liquidator, provisions liquidator, trustee, administrator, controller, inspector appointed under any companies or securities legislation, or similar official is appointed in respect of that Party or any of its property, or any security over any substantial part of its assets is enforced;
- the Party ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law, or makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, that Party’s creditors or threatens to do so, or stops payments to its creditors generally;
- the Party is, becomes, or is deemed to be insolvent or bankrupt;
- a distress, attachment or other execution is levied or enforced upon or commenced against any substantial Party of its assets and is not stayed within 14 days;
- anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or
- in the event that the Party is an individual, anything having a similar effect to any of the events specified above happens in respect of that individual;
Order Form means the purchase order form in the form agreed between the Supplier and the Purchaser from time to time or otherwise utilised by the Purchaser for ordering Deliverables from time to time and accepted by the Supplier;
Price means the price for the Deliverables specified in item 5 of the Specific Terms as adjusted in accordance with item 6 of the Specific Terms or such other price that is agreed to by the Supplier and the Purchaser for a specific order of the Deliverables as specified in an Order Form;
Specifications means any specifications set out in item 4 of the Specific Terms or such other specifications for the Deliverables that are agreed to in writing (but not by email) by the Supplier and the Purchaser;
Rejection Period means a maximum of 48 hours after delivery of the Deliverables to the Purchaser.
Related Body Corporate has the meaning ascribed to it in the Corporations Act 2001.
Site Rules means any rules, policies and procedures adopted by the Purchaser and Supplier relating to any site where Deliverables that constitute services may be supplied including, without limitation, those relating to safety, health and environmental and risk management (as notified by the Parties from time to time);
Specific Terms means the specific terms which precede these General Terms;
Term means the period specified in item 2 of the Specific Terms or such shorter period as may apply if this Agreement is terminated in accordance with clause 14;
Termination Event: means:
- a breach of a material obligation in this Agreement;
- the Supplier does not supply the Deliverables within the Specifications as set out in Schedule 1;
- the Purchaser does not pay for Deliverables within the time periods stated in this Agreement.
Warranties mean the warranties set out in clause 9.
Statutes and regulations: A reference to a statute is a reference to a statute and includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
Headings: Headings are inserted for convenience only and are to be ignored in construing this Agreement.
Clauses: References to clauses are to clauses of these General Terms.
Amounts: All amounts are in Australian dollars unless expressly stated otherwise.
Plural and singular: The singular includes the plural and vice versa.
Party: means either the Supplier or the Purchaser and Parties mean both the Supplier and Purchaser.
Person(s): The word “person” includes a natural person and any body or entity whether incorporated or not.
Suppliers: When there is more than one Supplier, reference to the Supplier in this Agreement is a reference to all of the suppliers both jointly and severally.
2.1 This Agreement shall apply to all Deliverables purchased by or on behalf of the Purchaser from the Supplier during the Term. If Deliverables are supplied after expiry of the Term without the Parties having entered into a replacement agreement or otherwise having expressly agreed in writing (but not by email) that these terms will not apply, the terms of this Agreement will continue to apply for that specific supply of Deliverables (but for the avoidance of doubt there will be no implied rollover of the Term and, unless the parties expressly agree otherwise in writing (but not by email), any such arrangement relating to continued supply may be terminated at any time by either party giving written notice to the other party).
3.1 Basis of Price: The Price is exclusive of GST but includes all other taxes or dutieslevied or assessed in connection with the supply of the Deliverables, unless otherwise expressly stated in item 5 of the Specific Terms or in any Order Form accepted by the Supplier.
3.2 Price adjustments: The Price will be adjusted in accordance with item 6 of the Specific Terms (if relevant).
4. Invoicing and Payment
4.1 Requirement to submit invoice: The Supplier will submit to the Purchaser invoices for Deliverables supplied to the Purchaser in accordance with this Agreement in accordance with item 7 of the Specific Terms.
4.2 Content of invoice: Each invoice must comply with all applicable law (including, but not limited to, the GST Law) and must state the Order Form number to which the invoice relates (if relevant).
4.3 Payment: The Purchaser will, provided that it receives the relevant invoice in accordance with this Agreement, pay the Price for the Deliverables supplied in accordance with item 7 of the Specific Terms.
4.4 Deductions: The Purchaser may deduct or withhold from any amount that it owes to the Supplier an amount equal to any payment made to the Supplier in excess of what was due and payable to the Supplier under this Agreement at the time of payment.
4.5 GST: In this clause the expressions “adjustment note”, “consideration”, “GST”, “input tax credit”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meaning given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999. Unless otherwise stated, all amounts under this Agreement exclude GST.
If the rate of GST is varied, the consideration payable for any supply under this Agreement shall be varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge connected with the rate change.
If this Agreement requires a Party to make payment, reimburse or indemnify the other Party for any amount, payment, expense, loss or outgoings (“reimbursable expense”) the amount required to be paid by the first Party shall be the sum of:
- the amount of the reimbursable expense net of input tax credits (if any) to which the other Party is entitled in respect of the reimbursable expense (“net amount”); and
- if the other Party’s recovery or payment from the first Party is a taxable supply, any GST payable in respect of that supply.
In addition to the above, any recipient is required to pay an amount equal to the supplier’s GST as well as, and at the same time as, the GST exclusive amount.
If a GST inclusive price is changed or varied, the supplier shall deliver to the recipient a valid tax invoice or adjustment note at or before the time of the supply. The recipient can withhold payment of the GST until the supplier provides a valid tax invoice or adjustment note as appropriate.
5. Order Forms
5.1 Order Forms: If the Purchaser wishes to purchase Deliverables from the Supplier under this Agreement it may provide to the Supplier an Order Form prior to the time specified for delivery in such Order Form.
5.2 Each Order Form is deemed to incorporate these Specific and General Terms (“Terms”) and constitutes an offer by the Purchaser to purchase the Deliverables subject to these Terms.
Order Forms will be deemed to have been received by the Supplier at the time of successful transmission to the Supplier.
5.3 Cancellation of Order Forms: The Purchaser may cancel an Order Form if the Purchaser has provided notice of such cancellation to the Supplier at least 48 hours prior to the time specified for delivery in such Order Form and the Supplier has not delivered the Deliverables in accordance with this Agreement.
5.4 Conflicts with terms of Order Forms: To the extent that there is any inconsistency or conflict between the terms set out in an Order Form, the terms set out in any document provided by the Supplier and the terms set out in this Agreement, the terms set out in this Agreement shall prevail.
6. Supply of Deliverables
6.1 Purchaser Deliverable volumes: Item 8 of the Specific Terms sets out the volume requirements of the Purchaser for the Deliverables.
6.2 Inspection: The Supplier may allow the Purchaser access to the Supplier’s storage facilities to inspect the Supplier’s facilities during normal working hours or as and when may be mutually agreed.
- 6.3 Availability of supply
The Supplier acknowledges that the Purchaser may require the Supplier to supply Deliverables in a manner and at times which enable the Purchaser or any of its businesses to operate on a 24 hour, 7 day a week, basis.
- The Supplier will ensure that adequate resources are available to enable the Supplier to meet the Purchaser’s requirements under this Agreement.
6.4 Continuity of supply
- The Supplier will ensure the continued supply of the Deliverables during the term of this Agreement.
- If any Deliverables shall be suspended in production/manufacture or become unavailable (except in the case of Force Majeure), the Supplier shall immediately notify the Purchaser and at the same time present a plan of action to maintain continuity of supply.
- Without limiting the rights or remedies the Purchaser may have under this Agreement, if the Supplier fails to supply the Deliverables in accordance with this Agreement, then:
- The Purchaser may source such Deliverables from a third party; and
- The Supplier will indemnify the Purchaser for all direct costs, losses and expenses incurred or suffered by the Purchaser as a result of such failure to supply the Deliverables.
6.5 Supply by Related Body Corporate: The Supplier may supply the Deliverables from a related body corporate or associated company..
7.1 Clause applies to goods: This clause 7 will only apply where the Deliverables are goods, in relation to the delivery of those goods.
7.2 Delivery to Purchaser’s Site: If item 9 of the Specific Terms provides that the Delivery Point is the Purchaser’s Site, the Supplier shall deliver, or arrange delivery of the Deliverables to the Purchaser’s Site and pay any associated transportation costs.
7.3 Delivery at Supplier’s Site: If item 9 of the Specific Terms provides that the Delivery Point is the Supplier’s Site, delivery shall take place at the time when the Deliverables are removed by the Purchaser from the Supplier’s Site.
7.4 Unloading: Where delivery is to the Purchaser’s Site in accordance with item 9 of the Specific Terms, delivery shall take place at the time the Deliverables are unloaded by the Supplier at the Purchaser’s Site. It shall be the responsibility of the Supplier to immediately unload the Deliverables, or arrange for a suitable means of unloading the Deliverables from the relevant delivery vehicle at the cost of the Supplier.
8. Risk and Ownership
8.1 Clause applies to goods: This clause 8 will only apply where the Deliverables are goods, in relation to the delivery of those goods.
8.2 Risk: Without affecting the right of the Purchaser to reject any Deliverables under clause 10, the Purchaser will bear the risk of loss or damage to any Deliverables after the Supplier has delivered (and, if required under clause 7.4, unloaded) the Deliverables to the Delivery Point. The Supplier will bear the risk of loss or damage to any Deliverables that occurs before such Deliverables are delivered to the Delivery Point.
8.3 Ownership: Legal and beneficial ownership (ownership) in the Deliverables will pass to the Purchaser on payment of the tax invoice for the Deliverables.
9.1 Deliverables warranties With respect to each of the Deliverables supplied to the Purchaser under this Agreement, the Supplier warrants to the Purchaser that:
- the Deliverables are free from all liens, charges, encumbrances or other security interests;
- any intellectual property rights or other proprietary rights of any other person will not be infringed by such supply or the Purchaser’s use of the Deliverables.
9.2 Specifications: Without limiting the effect of any other provision in this clause 9 or otherwise, if any Specifications are specified in item 4 of the Specific Terms, the Supplier warrants that all Deliverables supplied under this Agreement will comply in all respects with those Specifications.
9.3 General warranties: The Parties represent and warrants on the date of this Agreement and the Commencement Date, that:
- the execution of this Agreement and the performance of its obligations under this Agreement will not breach or conflict with any applicable law or regulation which applies to the Parties;
- they hold all required consents, approvals, allocations, permits and licences necessary for the storage and/or supply of the Deliverables.
9.4 Knowledge; Deliverables Information:
- The Supplier will ensure that all its employees, agents and contractors involved in the supply of Deliverables have the knowledge, qualifications, skills and experience appropriate for the supply of the Deliverables.
- The Supplier represents and warrants that any Deliverables information provided to the Purchaser is true and correct and is not misleading.
Compliance with law:
The Supplier acknowledges that it has a general duty of care under the WHS legislation in Queensland and any applicable statutory regulations.
If any representative, employee, or agent of the Supplier is required to attend a site owned or operated by the Purchaser, the Supplier will ensure that:
on entering the site all representatives of the Supplier must report to reception and will not proceed with any work activities until briefed by a representative of the Purchaser;
All relevant safety inductions are completed as required by the Purchaser at its absolute discretion;
If the visit is outside of normal working hours prior arrangement must be made;
The above obligations on the Supplier shall apply equally to the Purchaser where Purchaser visits a site owned or operated by the Supplier.
Adherence to Statutory Regulations
The Supplier and Purchaser shall ensure that all people in its control and performing work at any time are adequately trained, competent and, where appropriate, suitably licensed.
The Supplier shall also ensure that equipment being used is in safe operating condition and that licensing and / or certification where required is current and that regulations governing the licensing, certification or inspection are adhered to.
The Supplier shall ensure that equipment which has an active Statutory “Work Order” or “Prohibition Notice” or any other type of statutory notice which indicates that its state of repair is not acceptable, is not brought onto any of the Purchaser’s sites under any condition.
9.5 Adherence to the Parties’ Policies and Procedures: The Parties will comply, and will ensure that its employees, agents and contractors will comply, with all relevant Site Rules, statutes, regulations, by-laws, the requirements of any regulatory body and any safety, health and environmental guidelines or instructions given by the either Party to the other Party that relate to the Deliverables.
9.6 Inspection: Where applicable, each load of Deliverables will be inspected by the Purchaser before or during the Supplier’s unloading of the Deliverables to check for any visual contamination, including the amount of moisture content. Where practical, this inspection will take place within 20 minutes of the load arriving on site or unloading of the Deliverables. The specific load of Deliverables is to be rejected if there is visual contamination.
9.7 Costs: All costs associated with the Purchaser’s testing of the Deliverables will be payable by the Purchaser.
Rejection: If the Supplier delivers the incorrect Specification of Deliverables, the Purchaser may, within the Rejection Period, elect to reject such Deliverables, accept all such Deliverables, or accept any unit or units of such Deliverables and reject the rest.
Notification: The Purchaser will notify the Supplier as soon as practicable after becoming aware of any defect in any Deliverables delivered to it that is reasonably likely to result in the Purchaser rejecting such Deliverables.
Effect of rejection: If any Deliverables are rejected by the Purchaser such Deliverables will be collected by the Supplier and the Supplier will replace the Deliverables. The Supplier will assume all costs of transportation, handling both ways and disposal for such rejected Deliverables.
11.1 Insurance cover: The Supplier will maintain in full force and effect during the term of this Agreement comprehensive insurance cover with responsible and reputable insurers as would be prudent for companies engaged in such businesses. Such insurance will include cover for at least the minimum amounts as follows:
- Public Liability Insurance of $20,000,000; and
- General Product Liability of $20,000,000; and
- Motor Vehicle comprehensive third party liability damage, loss or injury.
The above insurances to be on an occurrence basis; that is, it will cover any claim made for injuries or damages arising out of an event occurring during the term of the policy regardless of whether the claim is made after the expiry of the policy.
11.2 Certificate of Insurance: If required by the Purchaser, the Supplier will provide to the Purchaser a certificate of insurance as evidence for the insurance cover referred to in clause 11.1.
12.1 Relationship: Each Party acknowledges that, except to the extent otherwise expressly provided in this Agreement:
- it is not the legal representative, agent, joint venturer or partner of the other Party for any purpose;
- it has no right or authority to assume or create any obligations of any kind or to make any representations or warranties, whether express or implied, for or on behalf of the other Party or to bind the other Party in any respect.
The Supplier’s liability to the Purchaser arising out of this Agreement is limited to direct losses and direct damages only. Neither Party is liable to the other Party for indirect losses or indirect damages, including consequential losses and losses of profit.
The Supplier’s total liability arising out of this Agreement is limited to the average annual Price paid by the Purchaser to the Supplier over the Term of this Agreement. Each Party must take reasonable steps to mitigate any loss incurred.
14.1 General rights of termination: Without prejudice to any other right or remedy it may have, whether under this Agreement, under statute or otherwise, either the Supplier or the Purchaser may terminate this Agreement and/or any Order Form by written notice to the other Party if:
- the other Party breaches any material obligation of that Party under this Agreement and/or any Order Form accepted by the Supplier; and
- the breach is not capable of being remedied; or
- the breach is capable of being remedied and the defaulting Party fails to remedy the breach to the non-defaulting Party’s satisfaction within 30 days after notice in writing has been given to the defaulting Party requiring such breach to be remedied; or
- an Insolvency Event occurs in respect of the other Party; or
- A Termination Event occurs.
For the avoidance of doubt, the payment by the Purchaser of all Amounts Owing when due is a material obligation of the Purchaser for the purposes of clause 14.1(a).
14.2 Effect of termination: Termination of this Agreement under this clause or clause 14.2 shall:
- have the effect of automatically terminating every Order Form in existence at the time of termination unless otherwise specified by the non-defaulting Party in the relevant notice; and
- not affect any provisions of this Agreement which are intended to continue after termination and shall also be without prejudice to any claim by either Party against the other Party arising out of any breach or non-performance by that Party of any obligations assumed by or imposed on that Party under this Agreement at any time prior to termination.
15. Force Majeure
15.1 Obligations suspended: Where either the Supplier or the Purchaser is unable, wholly or in part, by reason of a Force Majeure Event to carry out any obligation under this Agreement and that Party:
- gives the other Party immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event; and
- uses all reasonable endeavours to:
- mitigate the effects of the Force Majeure Event on that Party’s obligations under this Agreement; and
- perform that Party’s obligations under this Agreement despite the Force Majeure Event,
that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.
If the Purchaser is a recipient of a notice under clause 15.1(a), the Purchaser may, during the period for which the Supplier’s obligations are suspended pursuant to this clause 15.1, purchase from a third party Deliverables in substitution for the Deliverables that would otherwise be required to be supplied by the Supplier under this Agreement.
15.2 Termination: If by reason of a Force Majeure Event, the delay or non-performance of either the Supplier’s or the Purchaser’s obligations shall continue for more than an aggregate of 30 Business Days in any 12 month period, whichever of the Supplier and the Purchaser who is not relying on the Force Majeure Event may terminate this Agreement (and/or any Order Form to the extent affected by the Force Majeure Event) by written notice to the other Party.
16. Confidential Information
16.1 Confidentiality: Each Party agrees to keep confidential any information (other than any information which is already in the public domain or the unrestricted possession of that Party or has been independently developed by that Party, or any information which is required to be disclosed by law or by the listing rules of any applicable recognised stock exchange) about the business affairs of each other Party disclosed by or on behalf of such other Party and to take all appropriate steps which are necessary or desirable to ensure that such confidential information is not divulged without the prior written consent (but not by email) of the Party to which such information relates.
16.2 No announcement: Each Party agrees not to make any announcement or disclosure as to the existence or subject matter of this Agreement except in a form and manner as approved by the Supplier and the Purchaser or as may be required by law or by the listing rules of any applicable recognised stock exchange.
16.3 Required announcements/disclosures: If any announcement or disclosure is required by law or by the listing rules of any applicable recognised stock exchange, the Party required to make the disclosure will give the other Party prompt written notice of the requirement, where practicable before it occurs, so that the other Party has sufficient opportunity to prevent the disclosure through appropriate legal means and/or agree the form of the announcement or disclosure (in which case, each Party will take into account all reasonable requirements of the other Party).
17.1 Service: Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant Party and personally delivered, posted by pre-paid registered mail or electronic mail to the address of that Party specified in item 11 of the Specific Terms, or such other address as is notified by that Party to the other Party. No notice or communication is effective until received.
17.2 Pre-paid post communications: Every notice or other communication sent by pre-paid registered mail will be deemed to have been received three Business Days after it has been put into the post.
17.3 Outside business hours: Where receipt occurs outside the hours of 8.30am to 5.00pm on a normal business day defined by AEST in the location of the recipient, receipt will be deemed deferred until the next occurrence of 8.30am on a normal business day.
18. No Assignment
18.1 No assignment: The Supplier may not assign or sub-contract any of its rights or obligations under this Agreement, except with the prior written consent of the Purchaser, whose consent shall not unreasonably be withheld.
18.2 Obligations continue: The assignment by the Supplier of any of its benefits or obligations under this Agreement in whole or in part shall not relieve the Supplier in any way whatsoever from its responsibility for due performance of this Agreement in accordance with its terms.
Purchaser may assign: The Purchaser may assign any of its rights or obligations under this Agreement without the consent of the Supplier.
19. Exclusive Supply
The Purchaser will purchase all of its requirements for the Deliverables from the Supplier on a non-exclusive basis and the Supplier will supply all such requirements.
20.1 Entire Agreement: This Agreement constitutes the entire agreement of the Parties about its subject matter and any previous agreements, understandings and negotiations on that subject matter cease to have any effect. The Supplier and the Purchaser agree that, unless otherwise specifically agreed in writing (but not by email), the terms of this Agreement shall prevail over any existing or subsequent terms set out in any document (including, without limitation, any Order Form).
20.2 Waiver: No waiver of any breach of, or failure to enforce any provision of, this Agreement at any time by any Party shall in any way limit the right of such Party thereafter to enforce and compel strict compliance with the provisions of this Agreement.
20.3 Variations: No Party shall vary this Agreement, or any Order Form accepted by the Supplier except in writing (but not by email) signed on behalf of both the Supplier and the Purchaser.
20.4 Invalidity: If any term of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason, the relevant term is to be considered to be modified to the extent necessary to remedy the unenforceability, illegality or invalidity. If this is not possible, the provision is to be severed from this Agreement, without affecting the enforceability, legality or invalidity of any other term of this Agreement.
20.5 Governing law and jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of Queensland and the Parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
20.6 Counterpart execution:
- Copies: This Agreement may be executed in two or more counterpart copies each of which will be deemed an original, and all of which together will constitute one and the same instrument.
- Execution: A Party may enter into this Agreement by signing a counterpart copy and sending it to the other Parties. Each of the Parties shall promptly sign the original copies of this Agreement (such copies to be signed by all the Parties) after the execution of counterparts.
21. Dispute resolution
21.1 A Party will not start arbitration or court proceedings in respect of a dispute arising out of this Agreement (‘dispute’), unless it has complied with this clause.
21.2 A Party claiming that a dispute has arisen must notify the other Party giving details of the dispute.
21.3 During the twenty one (21) day period after a notice is given under clause 21.2 (or such longer period agreed in writing by the Parties to the dispute) (‘initial period’), each Party to the dispute must use its best endeavours to resolve the dispute.
21.4 If the Parties are unable to resolve the dispute within the initial period, the Parties agree that each Party shall nominate an officer with authority to meet, discuss and attempt to resolve the dispute within a further twenty one (21) day period (‘subsequent period’).
21.5 If the Parties are unable to resolve the dispute within the initial period or subsequent period, each Party agrees that the dispute must be referred for mediation in accordance with the Alternative Dispute Resolution process as set out by the Queensland Law Society, at the request of any Party, to:
- a mediator mutually agreed on by the Parties; or
- if the Parties are unable to agree on a mediator within seven (7) days after the end of the initial period, a mediator nominated by the then current President of the Law Society of Queensland, or the President’s nominee.