Coogee Chemicals Purchasing Terms & Conditions
The parties agree as follows:
1. Interpretation
1.1 This Agreement comprises: (a) these Terms and Conditions. (b) the purchase order to which these Terms and Conditions apply (Purchase Order). (c) such other documents which are incorporated into the Agreement by reference, (together, the Agreement) and, where there is any inconsistency between those documents, they take precedence in the order stated above.
1.2 The parties to this Agreement are: (a) the Purchaser; and (b) the contractor supplying the Goods or performing the Services (or both) as identified in the Purchase Order (Contractor).
1.3 For the purposes of this Agreement: (a) Goods mean those goods as specified and described in the Purchase Order; and (b) Services mean those services as specified and described in the Purchase Order (including any part of the specified services, any ancillary services, and those goods required for the completion of the Services).
2. Acceptance
2.1 This Agreement will be deemed to be accepted if: (a) the Contractor signs the section of the Agreement which indicates the Contractor’s acceptance of the Agreement, and returns that signed section to the Purchaser; or (b) the Contractor commences performing any part of the Agreement.
2.2 Unless these Terms and Conditions expressly provides otherwise, the Contractor accepts all risks associated with performing its obligations under the Agreement, other than those risks expressly accepted by the Purchaser.
3. Provision of Goods and/or Services
3.1 The Contractor must supply the Goods and/or Services to the Purchaser in accordance with the Agreement.
3.2 The Goods and/or Services must match the description (including performance criteria) in the Purchase Order.
3.3 The Services must be performed by appropriately qualified, competent, skilled, experienced and professional personnel and must be rendered with due care and skill.
3.4 If the Contractor supplies more Goods than specified in the Purchase Order, the Purchaser may return the excess to the Contractor at the Contractor’s cost.
3.5 The Contractor must ensure that the Purchaser has the full benefit of any manufacturer’s warranties that may apply to the Goods or Services, or both (and the Contractor must, if requested, pursue any manufacturer’s warranties on the Purchaser’s behalf at the cost of the Contractor).
3.6 The Goods and/or Services must comply with applicable Law. The Contractor must supply the Purchaser with all material safety data sheets for any Goods which are dangerous goods.
3.7 The Contractor must obtain at its cost all requisite licenses, permits and authorities required to supply the Goods and/or Services.
3.8 If the Contractor supplies the Goods or performs the Services (or any part thereof) contrary to any Laws, the Contractor will bear all costs associated with that contravention.
4. Delivery
4.1 The Contractor must deliver the Goods to the Delivery Point on or before the Delivery Date or complete the Services by the Delivery Date. The Contractor must keep the Purchaser informed on all aspects of the performance of the Agreement as required by the Purchaser from time to time.
4.2 The Contractor must ensure that the Goods are suitably packed to avoid damage in transit, or in storage, and in such a way to comply with any applicable Laws.
4.3 Packages must be marked with the Purchase Order number, item number, Delivery Point, contents, quantity, date and method of dispatch and weight of each package.
4.4 To the extent not covered by clause 4.3, the Contractor must include a packing list with each package of Goods delivered.
5. Inspection and Acceptance
5.1 The Contractor must, upon reasonable written notice, provide the Purchaser or its nominee access to the Contractor’s premises, and arrange for access to any subcontractor premises, for the purpose of inspecting Goods and/or and Services and ensuring compliance with the Agreement. Any such inspection by the Purchaser does not constitute acceptance or relieve the Contractor from any of its obligations under the Agreement.
5.2 The Purchaser must have a reasonable time to inspect the Goods after delivery. Payment for the Goods or the signing of delivery receipts before inspection does not constitute acceptance of the Goods.
5.3 The Contractor must provide to the Purchaser, at the Purchaser’s request, progress reports on the performance of the Services. A progress report must be sufficiently detailed to enable the Purchaser to ascertain whether the Services are in conformity with the Agreement.
5.4 At any time during the performance of the Services, the Purchaser may inspect or witness tests on the Services or their results. Page 1 of 9
5.5 If upon inspection, the Purchaser finds any Goods to be Defective Goods and/or any Services or their results to be Defective, the Purchaser may: (a) reject the Defective Goods by returning them to the Contractor. (b) reject the Defective Services by notifying the Contractor that the Purchaser is rejecting them. (c) repair the Defective Goods; or (d) make good the Defective Services.
5.6 The Purchaser may reject and return to the Contractor (in the case of Goods) any Goods and/or Services which are not in conformity with the Agreement even if the Purchaser has accepted or paid for those Goods and/or Services.
5.7 The Contractor must reimburse the Purchaser for any expenses the Purchaser incurs in returning or repairing Defective Goods and/or in making good Defective Services.
5.8 The Contractor must refund to the Purchaser, when requested, any payments made by the Purchaser in respect of Goods and/or Services which the Purchaser rejects.
6. Performance
6.1 The Contractor, in supplying the Goods or performing the Services, must: (a) not interfere with the Purchaser’s activities or the activities of any other person at the Site and ensure that the Site is left clean (b) not interfere with the activities of businesses or persons occupying adjoining sites or land in the vicinity of the Site (c) be aware of and comply with, and ensure that the Contractor’s personnel are aware of and comply with, all applicable Laws, all Site procedures, and comply with all lawful directions of the Purchaser; and (d) comply with any induction and safety requirements in relation to the Site notified by the Purchaser.
7. Title and Risk
7.1 Title in each part of the Goods passes to the Purchaser upon the earlier of the Delivery Date or payment of the applicable portion of the Price.
7.2 All Goods will be at the Contractor’s risk until: (a) the Delivery Date of the Goods or Services; (b) the Purchaser’s satisfaction that the Goods or Services comply with the Agreement; and (c) the Purchaser issuing a certificate of acceptance.
7.3 The Contractor warrants that: (a) on delivery, the Purchaser has complete ownership of the Goods free of any liens, charges and encumbrances; and (b) the Purchaser will be entitled to clear, complete, and quiet possession of the Goods.
8. Price
8.1 The Purchaser agrees to pay the Contractor the Price, in accordance with the Agreement, for the Goods and/or Services.
8.2 The Price is the sole basis for payment to the Contractor under the Agreement and is deemed to include all risks, liabilities and obligations expressed or implied in the Agreement. Except as expressly provided for in the Agreement, the Price is not subject to rise and fall or any escalation.
8.3 The Price is inclusive of all costs incurred by the Contractor in supply of the Goods and/or performance of the Services including all charges for packaging, packing, insurance and delivery of the Goods in accordance with the Agreement, any mobilisation or demobilisation costs, and the cost of any items used or supplied in conjunction with the Services. The Price is also inclusive of all taxes except GST.
8.4 The Price may not be increased without the Purchaser’s prior written consent. The Purchaser has the right to refuse to give its consent.
8.5 The Contractor must not conduct a variation nor deviate from the Agreement except as directed or permitted in writing by the Purchaser.
9. Invoicing and Payment
9.1 All invoices must clearly show the Purchase Order number and be addressed to the Purchaser at the address listed in the Purchase Order.
9.2 Subject to clause 9.3, payment will be made by the Purchaser end of month following receipt of the Contractor’s tax invoice; providing the Goods have been received and accepted, or the Services performed and accepted, by the Purchaser. The date of the tax invoice will not be before the Delivery Date of the Goods or performance of the Services.
9.3 Where the Purchaser disputes the invoice, the Purchaser must notify the Contractor in writing and the Contractor must: (a) within the time directed by the Purchaser, issue a credit note for the full amount of the disputed invoice and issue a new invoice for the undisputed amount, if any (undisputed invoice); (b) the Purchaser will pay the undisputed invoice or, if no such undisputed invoice is issued by the Contractor in accordance with clause 9.3(a), the undisputed part of the relevant invoice (if any) and dispute the balance; and (c) if the resolution of the dispute determines that the Purchaser is to pay an amount to the Contractor, the Purchaser will pay that amount upon resolution of that dispute.
9.4 The Purchaser may reduce any payment due to the Contractor under the Agreement by any amount which the Contractor is liable to the Purchaser, including costs, charges, damages and expenses and any debts owed by the Contractor to the Purchaser on any account whatsoever. This does not limit the Purchaser’s right to recover those amounts in other ways.
9.5 Payment by the Purchaser to the Contractor will not constitute an admission by the Purchaser that any Goods or Services have been delivered or performed to the Purchaser’s satisfaction (as applicable) and will only be taken to be payment on account.
9.6 If the Purchase Order involves the supply of Services on a cost plus or per hour basis, the Purchaser has the right to conduct an audit of the basis of the Contractor’s charges using the Contractor’s records. This right continues for 12 months after the expiry or termination of the Agreement.
10. Defects and Warranty Period
10.1 Without limiting the Contractor’s other obligations or warranties provided under these Terms and Conditions, the Contractor guarantees the Goods and Services and each part of the Goods and Services against any Defect under normal working conditions for a period of twelve (12) months after the Delivery Date and written acceptance of the Goods by the Purchaser (Warranty Period).
10.2 If, during the Warranty Period, the Purchaser finds any Defects in the Goods and/or Services (other than a Defect caused by the negligence of the Purchaser), the Purchaser may reject or accept the Goods and/or Services or require that any such Goods and/or Services be promptly repaired or replaced, (as the case may be) by the Contractor at no additional cost to the Purchaser.
11. Termination
11.1 The Purchaser may cancel a Purchase Order in whole or in part for any reason and at any time upon written notice to the Contractor.
11.2 In the event of termination for reason other than default of the Contractor, the Purchaser must pay the Contractor its reasonable, direct, and substantiated costs of termination subject to the Contractor mitigating these costs as far as practicable.
11.3 If the Contractor fails, refuses, or is unable to deliver the Goods or perform the Services as directed by the Purchase Order or is otherwise in default of the Agreement, the Purchaser may terminate the Agreement in part or whole in writing to the Contractor without incurring any obligation to the Contractor.
11.4 The Purchaser may, subject to compliance with Law, terminate the Agreement if the Contractor is or becomes Insolvent.
12. Contractor’s Personnel and Access to Site
12.1 The Purchaser may require the removal from the Site of any of the Contractor’s Personnel who, in the Purchaser’s reasonable opinion, is incompetent or lacks the experience necessary for the work assigned to that person, or who has breached any applicable Laws, or the policies of the Purchaser. The Contractor must, at its cost, promptly remove and replace such Personnel.
12.2 The relationship between the Purchaser and the Contractor is that of principal and contractor. The Contractor and the Contractor’s Personnel will not under any circumstances be considered servants, employees, or agents of the Purchaser.
12.3 The Contractor indemnifies the Purchaser against any liability, claim, loss, damage, cost or expense suffered or incurred by the Purchaser in respect of the payment of salaries, wages, levies, commissions, allowances, and other remuneration to the Contractor’s Personnel and for any payments to authorities in respect of the Contractor’s Personnel (including in respect of any tax (including payroll tax), superannuation, or workers’ compensation insurance).
12.4 The Contractor is at all times responsible for the provision of accommodation, messing, uniforms, safety equipment, flights, and transport of the Contractor’s Personnel, unless otherwise expressly specified in the Purchase Order. Where accommodation and related facilities are provided by the Purchaser, the Contractor indemnifies the Purchaser against any liability, claim, loss, damage, cost or expense suffered or incurred by the Purchaser in connection with any loss or damage to any accommodation (or any part of the accommodation) and associated facilities and services caused or contributed to by the Contractor or the Contractor’s Personnel.
12.5 The Contractor is responsible for the management of all industrial relations matters relating to the Contractor’s Personnel and must keep the Purchaser informed of any potential disputes with any Contractor’s Personnel or unions.
12.6 The Purchaser must provide non-exclusive access to the Site sufficient for the Contractor to provide the Goods and Services under the Agreement.
12.7 The Contractor must ensure that the Contractor and the Contractor’s Personnel: (a) keep themselves informed as to the requirements of, comply with and not do anything which may place the Purchaser in breach of Laws or legislative requirements applying to the Site; (b) comply with all procedures, policies, or rules adopted from time to time by the Purchaser in connection with the Site; and (c) comply with the directions (if any) given to the Contractor by the Purchaser or others authorised by the Purchaser or any legislative requirement at any time in connection with the Site (including access to and use of the Site).
13. Contractor’s Equipment
13.1 The Contractor must maintain its plant and equipment in a safe, operable, and good working condition throughout the performance of the Agreement.
14. Warranties
14.1 The Contractor warrants that it will at all times comply with applicable Law and give all notices necessary to comply with any legal requirements and any fees associated with compliance with applicable Law.
14.2 The Contractor warrants that the Goods and Services supplied will (as applicable): (a) match the description of the Goods and Services in the Purchase Order; (b) if the Contractor gave the Purchaser a sample of the Goods before the Purchaser issued the Purchase Order, the Goods correspond with the sample; (c) if the Contractor provided the Purchaser with a demonstration of the Services before the Purchaser issued the Purchase Order, the Services correspond in nature and quality with the services that achieved that result; (d) comply with applicable Law; (e) be new and of merchantable quality; (f) be fit for their intended purposes set out in, or which an experienced professional contractor would reasonably infer from the Purchase Order; (g) to the extent that the Services are design Services, the works being designed will be fit for their intended purpose as described in the Purchase Order; (h) any items which the Contractor uses or supplies in conjunction with the Services are of merchantable quality and comply with any standards specified in the Purchase Order and are fit for their usual and any purpose as described in this Purchase Order; (i) have the full benefit of any manufacturer’s warranties that may be applicable to the Goods; (j) be in good working order and condition and free from Defects and omissions; (k) have a life expectancy commensurate with what would be expected of similar goods provided for similar purposes by a competent and reputable supplier; (l) not infringe or contribute to the infringement of any intellectual property rights; and (m) conform with these Terms and Conditions for the Warranty Period.
15. Insurance
15.1 The effecting of insurance as required under clause 15.2 will not in any way limit the Contractor’s obligations or responsibilities under the Agreement.
15.2 The Contractor, at its own expense, must procure and maintain all insurances required by Law and the following insurance policies: (a) insurance for the Goods up to the time they are delivered and installed (if required) for an amount not less than their replacement value; (b) workers’ compensation insurance (including occupational disease where required by Law) and employer’s indemnity insurance which complies with relevant Law covering all claims and liabilities under any statute and at common law (where applicable) for the death of or injury to any person employed by the Contractor or any of the Contractor’s Personnel in connection with the Agreement; (c) public liability insurance with a limit of not less than $20,000,000) to cover the Contractor’s legal liability in respect of occurrences resulting in: (i) (ii) death of or bodily injury (including illness) to any third party; and damage to property not belonging to nor held in trust by nor in the care, custody or control of the Contractor. In addition, the Contractor must effect the public and products liability insurance in the joint names of Coogee (as Principal), the Contractor and Secondary Subcontractors to cover their respective rights and interests and liabilities to third parties and their liability to each other for loss or damage to property (other than property required to be insured under a contract works policy of insurance) and death of or injury to any person (other than liability which applicable law requires to be covered under a worker’s compensation policy). (d) motor vehicle insurance, covering all mechanically propelled vehicles that are registered, or capable of being registered, for road use and owned or leased by the Contractor, and are at any time used in connection with the Agreement, including: (i) insurance that is compulsory under applicable Law governing the use of motor vehicles and liability for personal injury or death; and (ii) liability insurance for Purchaser and third party property damage with a limit of not less than $30 million per occurrence; and (e) if the performance of the Services involves the provision of professional services, professional indemnity insurance with a limit of not less than $2 million per claim, or such other amount required by the Purchaser in writing, for a period of two years, or such other period required by the purchaser in writing, from the date of the Purchase Order. (f) If the performance of the Contract requires the Contractor to use or provide for use constructional plant and equipment, the Contractor shall maintain or require the owners of such constructional plant and equipment to maintain insurance covering all loss of and damage to the Contractor’s constructional plant and equipment, for its replacement value.
15.3 Before commencing the provision of Goods or Services, the Contractor must provide the Purchaser with certificates of currency for any insurances required to be held by the Contractor and its subcontractors under the Agreement. All costs incurred by the Purchaser as a consequence of the Contractor not maintaining such insurances will be a debt due from the Contractor to the Purchaser.
15.4 The Contractor must ensure that every subcontractor engaged by it maintains insurance in the same manner required of the Contractor under this clause 15.
15.5 The insurances arranged by the Contractor and its subcontractors must be subject to approval by the Purchaser as to the adequacy and terms of insurance protection required and their continued existence and the Contractor must provide all such documentation, information and assistance as may be required by the Purchaser in this regard.
15.6 No approval by the Purchaser as to the adequacy in terms of insurance protection nor sighting by the Purchaser of certificates of currency or copies of policies will be taken as a representation by the Purchaser, that such insurance is adequate or be raised or pleaded in bar to any action against the Contractor for default in performing in any of the requirements under this clause.
15.7 The Contractor must at all times be responsible for complying with and abiding by the terms and conditions of the insurances arranged by the Contractor and for the payment of all excesses or deductibles under the terms of such insurances.
15.8 The Contractor must immediately advise the Purchaser of any change or cancellation of the insurances referred to in this clause 15.
16. Liabilities and indemnities
16.1 The Contractor acknowledges that if it enters the Site, it does so at its own risk. The Contractor must ensure that its employees, agents, contractors and subcontractors are also aware that they enter the Site at their own risk.
16.2 The Contractor indemnifies the Purchaser and the Purchaser Group against any liability, claim, loss, damage, cost or expense suffered or incurred in connection with any claim made against any member of the Purchaser Group in respect of: (a) death or personal injury to any person (including the Purchaser’s Personnel or the Contractor’s Personnel); and (b) damage to or loss of property (including Intellectual Property) of any person, arising out of or in connection with any act or omission by the Contractor or the Contractor’s Personnel, including a breach of the Agreement, tort (including negligence) or breach of a statutory or equitable duty.
16.3 Every exemption, limitation, defence, immunity indemnity or other benefit contained in the Agreement to which the Purchaser is entitled is held by the Purchaser for the benefit of, and extends to protect, each of the Purchaser’s Personnel, the Contractor’s Personnel and each member of the Purchaser Group and their respective Personnel (excluding the Contractor and the Contractor’s Personnel).
16.4 Each indemnity in the Agreement is a continuing obligation separate and independent from the Contractor’s other obligations and survives termination of the Agreement.
16.5 It is not necessary for the Purchaser to incur expense or make payment before enforcing a right of indemnity conferred by the Agreement.
16.6 The Purchaser is not liable to the Contractor in any circumstances for any indirect, economic, special or consequential loss or damage, including but not limited to loss of revenue, loss of production or loss of profit.
16.7 The maximum aggregate liability of the Purchaser in respect of any and claims by the Contractor under, or in connection with the Agreement, is limited to the Price.
17. Liquidated Damages
17.1 The Contractor must pay liquidated damages to the Purchaser for any failure to provide the Goods and/or Services by the date required under the Agreement.
17.2 Liquidated damages are calculated at the Liquidated Damages Rate of 5% per day up to and including the date the provision of the Goods and/or Services has been completed in compliance with the Agreement.
17.3 Liquidated damages payable pursuant to this clause 17 will immediately become a debt due and payable by the Contractor to the Purchaser.
17.4 The Purchaser may, at any time, give the Contractor a written demand for any liquidated damages payable by the Contractor pursuant to this clause 17.
17.5 The Contractor acknowledges that the level of liquidated damages payable under this clause 17 is a genuine pre-estimate of the loss suffered by the Purchaser for a failure of the Contractor to deliver the Goods and/or Services by the Delivery Date and is not a penalty.
17.6 Payment by the Contractor of any liquidated damages will not relieve the Contractor of its obligation to provide the Goods and/or Services, or from any of its other obligations or liabilities under the Agreement.
17.7 If the definition of Liquidated Damages Rate is not completed or is completed by words which indicate that liquidated damages will not apply to the Agreement (whether by the use of the words ‘not applicable’, ‘nil’ or otherwise) or if clause 17.1 is found to be unenforceable for any reason, the Contractor must indemnify the Purchaser from any loss suffered or incurred by the Purchaser by reason of the Contractor’s delay in providing the Goods and/or Services by the Delivery Date.
18. Records and right to audit
18.1 At all times during the term of the Agreement, the Contractor must maintain complete and accurate records, together with all supporting or underlying documents and materials, relating to or in connection with the Goods and/or Services and the Contractor’s obligations under the Agreement (and the Contractor must ensure that its Personnel maintain the same).
18.2 The Purchaser may at any time by reasonable notice in writing to the Contractor request that the Contractor make available the records required to be maintained under this clause. Upon such request, the Contractor must make such records available for inspection and audit (including copies and extracts of records if required) to the Purchaser.
19. Confidentiality, Privacy and Data Protection
19.1 The Contractor must not, without the Purchaser’s prior written consent, refer to its appointment in any advertisement or promotional material or discuss the Goods or Services with any third party.
19.2 The Contractor must keep all information provided by or on behalf of the Purchaser (including the Agreement), including any information which relates to the business or affairs of the Purchaser (or the Purchaser Group), confidential and must not disclose such information to a third party without the Purchaser’s prior written consent.
19.3 The rights and obligations under this clause 19 continue after the termination of the Agreement.
19.4 The Contractor must at all times (and use reasonable measures to ensure third parties it contracts with in relation to this Contract must) implement and maintain sufficient cyber security measures to maintain the integrity of its information technology systems, operational technology systems, networks, internet-enabled applications or devices, and the data contained within such systems. Any breach must be notified to the Purchaser immediately upon discovery.
19.5 The Contractor must comply with its obligations under the Privacy Act 1988 (Cth) in respect of personal information obtained by or disclosed to it pursuant to the Agreement.
20. Intellectual Property
20.1 The Contractor warrants that the Goods (other than those manufactured to the Purchaser specifications) covered by the Agreement and their use, alone or in combination, according the Contractor’s specifications or recommendations, if any, will not infringe any patent trade mark, copyright industrial design, or process of manufacture (Intellectual Property) and agrees to indemnify the Purchaser against all judgments, liabilities costs, and expenses, which result from infringement or alleged infringement of any Intellectual Property rights. The Purchaser will have a permanent, assignable, non-exclusive, royalty free licence to use any Intellectual Property in the Goods for the use, operation, repair, maintenances, servicing, addition, or alteration of the Goods.
20.2 The Contractor must provide all technical data, in connection with the Goods and/or Services to the Purchaser.
21. Sub-Contracting
21.1 The Contractor must not subcontract the performance of any of its obligations under the Agreement without the prior written consent of the Purchaser, which consent may be withheld by the Purchaser in its absolute discretion.
21.2 The Purchaser may withdraw its permission to subcontract at any time and for any reason whatsoever, without penalty. The Contractor must take immediate action to remove the affected subcontractor or subcontractors from the Site.
21.3 The Contractor is not relieved of any of its obligations pursuant to the Agreement or entitled to any change to the Price or any other payment or compensation by reason of any subcontract agreement or arrangement it enters into with a Subcontractor, or the Purchaser giving, or refusing or failing to give its consent under clause 21.1.
21.4 The Contractor is responsible for the acts and omissions of any subcontractor engaged by the Contractor (including any subcontractor to a subcontractor) as if they were the acts of the Contractor, whether those acts or omissions were authorised by the Purchaser or not.
22. Dispute Resolution
22.1 If either party considers a dispute has arisen under the Agreement, it may issue a dispute notice to the other party which sets out the details of the dispute. In the event of a dispute, a senior representative from each party with authority to resolve the dispute must meet to resolve the dispute. If no agreement is reached within fifteen (15) Business Days after a dispute notice is issued, the dispute must be referred to the Managing Director (or equivalent) of the respective parties.
22.2 If the Managing Directors (or equivalent) of the respective parties are not able to resolve the dispute within fifteen (15) Business Days after a dispute is referred to them, and having met at least twice, either in person or by electronic means where they are able to communicate simultaneously, either party may commence legal proceedings.
22.3 During a dispute, the parties must continue to perform their obligations under the Agreement.
23. Compliance
23.1 The Contractor must: (a) at all times comply with applicable Law relating to modern slavery, anti-bribery and improper payments including but not limited to the Criminal Code Act 1995 (Cth) (Australia), the Foreign Corrupt Practices Act 1977 (United States) and the Bribery Act 2010 (United Kingdom); (b) operate in a manner consistent with the United Nations (UN) Universal Declaration of Human Rights and the UN Guiding Principles on Business and Human Rights; and (c) not engage in any conduct that is unlawful or is otherwise restricted or prohibited under any applicable competition Law in relation to the terms and conditions of the Agreement.
24. Taxes and GST
24.1 Unless otherwise expressly provided in these Terms and Conditions, the Contractor must pay all taxes including sales tax, payroll tax, levies, duties (including customs duties) and assessments due in connection with the Goods and/or Services. The Contractor must indemnify the Purchaser from any liability for those taxes, charges and other payments which has arisen or may arise.
24.2 Any reduction in the amount of customs duty actually paid, or any refunds of customs duty received shall be to the Purchaser’s account.
24.3 If any supply made under the Agreement is or becomes subject to GST, the party to whom the supply is made (Recipient) must pay to the party making the supply (Supplier), as consideration in addition to any consideration payable or to be provided elsewhere in the Agreement, subject to issuing a tax invoice, an additional amount on account of GST, such amount to be calculated by multiplying the consideration by the applicable rate of GST.
24.4 Any amount in respect of GST payable under clause 24.3 must be paid to the Supplier on or before the last Business Day of the month following the month in which the Recipient receives the tax invoice.
24.5 If any party is required to reimburse or indemnify the other party for a cost, expense or liability (Cost) incurred by the other party, the amount of that Cost for the purpose of the Agreement is the amount of the Cost incurred less the amount of any credit or refund of GST to which the party incurring the Cost is entitled to claim in respect of the Cost.
25. Labour Hire Licensing
24.6 Without limiting anything in these Terms and Conditions, where the Services performed require that the Contractor must hold a Labour Hire Licence in order to lawfully perform the Services, the Contractor: (a) warrants that it currently hold the required Labour Hire Licence and that it is on the Register of Licences as holding a Labour Hire Licence; (b) at its expense, must maintain a Labour Hire Licence that allows it to lawfully perform the Services; (c) must ensure the Services comply with any conditions imposed on its Labour Hire Licence; (d) must immediately inform the Purchaser if the Contractor is subject to any disciplinary action, including a show cause process, regarding its Labour Hire Licence; and (e) must immediately inform the Purchaser if the Contractor’s Labour Hire Licence is cancelled, suspended or has any conditions imposed on it.
26. Health Safety & Environment
26.1 Where the supply of Goods or Services requires the Contractor to enter the Site, the Contractor and the Contractor’s Personnel: (a) enter at their own risk; (b) must perform the Services safely so as to protect persons, property and the environment. (c) ensure that the Contractor’s Personnel entering the Site perform the Services or deliver the Goods in a safe manner and in a way that do not prejudice safe working practices, safety and care of property and continuity of work at the Site;
26.2 The Contractor warrants it has systems in place to manage any health and safety risks associated with the supply of Goods or performance of Services and has the necessary skills and experience to do so.
26.3 Without limiting the Contractor’s obligations under clause 14.1, comply with any applicable Law, Code of Practice or Australian Standard that deals with occupational health and safety, workers’ compensation, workplace rehabilitation and workplace insurance, for the relevant jurisdiction of the Site, being the Work Health and Safety Act 2020 (WA), Work Health and Safety (Mines) Regulations 2022 (WA) or Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2024 (Qld), or the Workers Compensation Act 1987 No 70 9 (NSW).
26.4 The Contractor must consult, cooperate and coordinate activities with all other persons who have a duty under the applicable safety Laws in relation to the same matter.
26.5 The Contractor must: (a) immediately notify the Purchaser upon the occurrence of any accident, incident or near miss accident or incident; and (b) provide all such information and assistance as the Purchaser reasonably requires in connection with any statutory or internal health and safety, environment, or community investigation in connection with the Agreement, the supply of the Goods, or the performance of the Services.
26.6 Any direction given by the Purchaser to the Contractor regarding health and safety must be complied with and does not derogate from the Contractor’s contractual obligations.
26.7 Any failure by the Contractor to meets its Contractual obligation in regard to health and safety is a material breach of the Agreement and the Purchaser may terminate the Agreement without notice.
27. Conflict of Interest
27.1 The Contractor must advise the Purchaser of any director, owner or employee of, or any person otherwise engaged by the Contractor who: (a) is involved, planned to be involved or who becomes involved in performing any Services, or supplying any Goods under the agreement; or (b) who was involved in the preparation, review, negotiation, approval, or execution of the Agreement, that has a real, potential or perceived Conflict of Interest.
27.2 The Contractor warrants to the Purchaser that the Contractor has systems in place to identify Conflicts of Interest.
27.3 The Contractor warrant that at the time of entering into the Agreement there is no Conflict of Interest that the Contractor has not previously declared to the Purchaser in writing, and the Contractor undertakes to advise the Purchaser immediately if a Conflict of Interest arises.
28. Coogee Code of Conduct
28.1 The Contractor must comply with the Coogee Supplier Code of Conduct , as amended from time to time, the terms of which are incorporated into the Agreement.
28.2 The Contractor must notify the Purchaser as soon as the Contractor becomes aware that there is any actual or suspected breach by the Contractor of clause 28.1
29. Assignment
29.1 The Contractor must not assign or subcontract the whole or any part of the Agreement without the Purchaser’s prior written consent.
29.2 The Purchaser may assign or novate the Agreement or any right, benefit, obligation or liability under or in respect of the Agreement without the consent of the Contractor.
30. Terms Exclusive
30.1 By supplying the Goods and Services referred to in the Purchase Order, the Contractor agrees to be bound by the terms in the Agreement.
30.2 Except as may be specifically provided in the Agreement, any terms and conditions contained in, or relating to any other documents, including any of the Contractor’s documents, in respect of the Goods and/or Services are excluded.
31. Governing law
31.1 The Agreement is governed by the Laws of Western Australia.
31.2 Each party submits to the non-exclusive jurisdiction of the courts of Western Australia.
32. PPSA
32.1 If either party (Secured Party) determines the Agreement (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the other party (Grantor) agrees to do anything which the Secured Party asks and considers necessary for the purposes of: (a) ensuring the security interest is enforceable, perfected, and otherwise effective; (b) enabling the Secured Party to apply for any registration, or give any notification, in connection with the security interest so the security interest has the priority required by the Secured Party; or (c) enabling the Secured Party to exercise rights in connection with the security interest.
32.2 The parties will bear their own costs in complying with, and performing, their respective obligations under this clause 32.
32.3 If the Agreement is or contains a security interest for the purposes of the PPSA, each party agrees (to the extent allowable by Law): (a) sections 142 and 143 of the PPSA are excluded and the relevant Secured Party need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), and 132(4) of the PPSA; and (b) the Purchaser need not give any notice required under any provision of the PPSA (except section135).
32.4 This clause applies despite any other clause of the Agreement.
32.5 If a term used in this clause 32 has a particular defined meaning in the PPSA, it has the same meaning in clause 32.
33. Miscellaneous
33.1 All notices and other documents required to be given under the Agreement: (a) must be in writing and signed by an authorised person; and (b) may be delivered by post, hand or email to the party to whom the notice is addressed at its address stated in the Agreement or notified to the other party by notice.
33.2 The Agreement constitutes the entire agreement between the parties in respect of its subject matter and supersedes all other prior agreements, quotation requests, understandings, representations, warranties, promises, statements, negotiations, letters and documents in respect of its subject matter (if any) made or given prior to the date of the Purchase Order. The Contractor warrants it has not entered into the Agreement on the basis or in reliance on any prior representation which is not contained in the Agreement.
33.3 The expressions “including”, “includes” and “include” are not expressions of limitation but have the meaning as if followed by “without limitation”.
33.4 The Agreement may be executed in any number of counterparts.
33.5 Headings and bold type are for convenience only and do not affect the interpretation of the Agreement.
33.6 If any provision of this Agreement is, or becomes, void or unenforceable, that provision is, or will be, severed from the Agreement so that all provisions that are not, or do not become void or unenforceable remain in full force and effect and are unaffected by that severance.
33.7 No failure, delay or relaxation by any party in exercising any rights conferred under the Agreement will operate as a waiver of such right. Any waiver must be in writing and signed by the party granting the waiver.
33.8 The Agreement may only be amended in writing signed by the parties.
33. Definitions
Agreement is defined in clause 1.1.
Business Day means a day which is not a Saturday, Sunday or public holiday in Perth, Western Australia.
Conflict of Interest means a personal or business relationship with anyone at any of the Purchaser’s operations which may give rise to a real, potential or perceived conflict of interest.
Dangerous Goods has the meaning given in the Australian Code for the Transport of Dangerous Goods by Road & Rail, Edition 7.9, 2024.
Defect means any aspect of the Goods or Services not in accordance with the Agreement, any damage, deficiency, fault, inadequacy in design, performance, workmanship, quality or makeup of the Good or Services and Defective has a corresponding meaning.
Delivery Date means the delivery date specified in the Purchase Order or as agreed in writing.
Delivery Point means the delivery point specified in the Purchase Order.
Goods is defined in clause 1.3(a).
GST means the goods and services tax imposed by the New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Heavy Vehicle National Law means the Heavy Vehicle National Law and its associated regulations, being the Heavy Vehicle (Fatigue Management) National Regulation, the Heavy Vehicle (General) National Regulation, the Heavy Vehicle (Mass, Dimension and Loading) National Regulation, the Heavy Vehicle (Registration) National Regulation and the Heavy Vehicle (Vehicle Standards) National Regulation).
Insolvent means, with respect to a party, that it is insolvent (as defined in the Corporations Act 2001 (Cth)), in liquidation or provisional liquidation, receivership, bankruptcy (protective or otherwise) or under administration, unable to pay its debts as and when they fall due or otherwise insolvent, or that it has entered into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors or that any analogous event has occurred.
Intellectual Property is defined in clause 20.1.
Labour Hire Licence means the licence required by the Labour Hire Licensing Act 2017 (Qld).
Law means all legislation including regulations, bylaws, orders awards and proclamations with which a party is legally required to comply, together with all Authority requirements, guidelines, consents, certificates, licenses, permits and approvals (including conditions in respect of those consents, certificates, licenses permits and approvals) with which a party is legally required to comply and includes any law made to replace, modify, amend, or modernise.
Liquidated Damages Rate means 5% of the Purchase Order value of the Goods and or Services per day, up to and including the date the provision of the Goods and/or Services has been completed in compliance with the Agreement.
Personnel means directors, employees, agents, contractors or subcontractors of the parties, but a reference to the Purchaser’s Personnel excludes the Contractor.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price set out or inferred in the Purchase Order.
Purchase Order has the meaning given in clause 1.1(b)
Purchaser means Coogee Chemicals Pty Ltd (ACN 008 747 500) or such other member of the Purchaser Group named on the Purchase Order.
Purchaser Group means the Purchaser and its related bodies corporate as defined in the Corporations Act 2001 (Cth).
Services is defined in clause 1.3(b).
Site means the Purchaser’s site, or sites, specified in the Purchase Order.
Terms and Conditions means the terms and conditions contained in this document.