Terms & Conditions
FOR PURCHASE OF GOODS AND/OR SERVICES
Our purchase order terms and conditions can be downloaded here.
(a) Delivery Date means the ’Required by Date’ specified on the Purchase Order;
(b) Goods means the goods, if any, described on the Purchase Order in the Item Description;
(c) Point of Delivery means the address described as the address to “Ship To” in the Purchase Order;
(d) PPSA means the Personal Property Securities Act 2009 (Cth);
(e) Price has the meaning given by clause 5;
(f) Purchaser means ACTIONBLAST Pty Ltd trading as AES EQUIPMENT SOLUTIONS (ABN 18 058 473 331);
(g) Purchase Order means this Purchase Order form incorporating the Terms and Conditions;
(h) Services means the services, if any, described on the Purchase Order in the ‘Item Description’;
(i) Supplier means the entity to whom the Purchase Order is addressed; and
(j) Terms and Conditions has the meaning given by clause 1.2.
1.2 The Purchase Order (including any attachments listed therein) together with these ‘Terms and Conditions for Purchase of Goods and/or Services’ (Terms and Conditions), constitutes the entire agreement between the Purchaser and Supplier in respect of the Goods and/or Services (Agreement), unless a prior separate agreement (Separate Agreement) has been entered into between the parties in which case the Separate Agreement will also apply and, to the extent of any inconsistency, the terms and conditions of the Separate Agreement will take precedence to the Terms and Conditions of this Agreement. Except to the extent provided in this clause 1,2, the Supplier agrees that it does not rely on any other document, information or thing given to it, or any representation made, by the Purchaser, its officers, agents, employees or contractors.
1.3 If any one or more of the Terms and Conditions of the Agreement are determined to be invalid, illegal or unenforceable in any respect, whether wholly or in part, the validity, legality and enforceability of the remaining Terms and Conditions of the Agreement, to the greatest extent possible, are not affected in any way.
1.4 The Purchase Order constitutes the sole description of the Goods and Services and the Purchaser accepts no responsibility for the delivery of any goods or services not specified on the Purchase Order.
1.5 Any variation to this Agreement will only be deemed to occur if it is in writing and signed by an authorised officer of the Purchaser.
1.6 Any failure by the Purchaser to insist upon strict performance of any term or condition of the Agreement is not to be deemed to be a waiver of any of the Purchaser’s rights or remedies under either the Agreement or generally at law, or of any rights arising out of any subsequent act or default of the Supplier. Acceptance of any goods and/or services purported to be supplied pursuant to the Agreement does not imply agreement to any alteration of the Agreement in any respect or waive any of the Purchaser’s rights arising out of any prior or subsequent act or default.
1.7 The Supplier is not to assign the Purchase Order or any part of the Agreement without the prior written consent of the Purchaser (which consent the Purchaser may give or withhold in its absolute discretion).
1.8 These Terms and Conditions are governed by the laws of the State or Territory from which the Purchase Order was issued. The parties agree to submit to the non-exclusive jurisdiction of the courts of the State or Territory from which the Purchase Order was issued.
1.9 This Agreement does not confer upon the Supplier any exclusivity in respect of any Goods and/or Services at the Point of Delivery or any other site of the Purchaser.
2.0 PACKAGING AND DELIVERY OF GOODS
2.1 Any Delivery Date or time for delivery requirement contained in the Purchase Order is a condition of the Agreement for which time is considered to be ‘of the essence’. The parties agree that the Purchaser is entitled to terminate the Purchase Order and/or the Agreement if delivery is not made within the time specified or on or before the date specified.
2.2 All Goods delivered are to be packaged as specified in the Purchase Order. Where packaging is not specified, but custom in the trade so requires, Goods are to be properly packaged in accordance with good industry practice.
2.3 All Goods and/or Services are to be delivered to the Point of Delivery specified in the Purchase Order, unless otherwise specified in writing by the Purchaser.
2.4 Goods will not be considered delivered under the Agreement, and the Purchaser is not obliged to accept any Goods, unless accompanied by a delivery docket or packing slip quoting the Purchase Order number.
2.5 All dangerous, hazardous or potentially hazardous Goods and substances must be adequately packaged and clearly labelled and accompanied by all appropriate documentation and instructions for safe use, handling and storage. Such Goods are to be transported in accordance with good and safe industry practice and be provided with a current Material Safety Data Sheet (MSDS). A MSDS must be provided prior to and must accompany each delivery and a new or amended MSDS must be immediately re-issued to the Purchaser as it becomes available.
3.0 RISK, TITLE AND PROPERTY IN GOODS
3.1 The title to, and property and risk in the Goods and/or Services will not pass to the Purchaser until:
(a) the Goods and/or Services are delivered to, and accepted (subject to this Agreement) by the Purchaser at the specified Point of Delivery: or
(b) where the Goods are held by the Supplier at a particular place, until the Supplier issues the Goods to the Purchaser from the relevant place and Goods are inspected by and accepted by the Purchaser.
(c) Notwithstanding the above, title will pass to the Purchaser upon payment of the Price however risk will remain with the Supplier while the Goods remain in the possession of the Supplier.
3.2 If the Purchaser pays any full or part payment of the Price (including any deposit) prior to the delivery of the Goods to the Purchaser, then the Supplier charges the Goods (and any materials purchased for incorporation into the Goods) with the obligations owed or which may be owed by the Supplier to the Purchaser under or in respect of the Purchase Order, including any obligation to repay any sums paid by the Purchaser in the event of non-delivery of the Goods. The Supplier and the Purchaser agree that the Agreement creates, in favour of the Purchaser, a security interest in such Goods to secure supply of the Goods by the Supplier to the Purchaser.
3.3 The Supplier shall not grant any other person security interest in the Goods, and shall not part with possession of the Goods, in whole or in part, except by delivery to or at the direction of the Purchaser.
3.4 The Supplier must:
(a) promptly do all things, sign any further documents and provide any information which the Purchaser may reasonably require to enable the Purchaser to perfect and maintain the perfection of any security interest over Goods (including by registration of a financing statement or financing change statement); and
(b) give the Purchaser not less than 14 days’ prior written notice of any proposed change in the Supplier’s name or any other change in the Supplier’s details (including without limitation changes in the Supplier’s address, facsimile number, trading name or business address).
3.5 The Supplier waives its right to receive notice of any registration events to which section 157(3)(a) of the PPSA applies.
3.6 The Supplier and the Purchaser agree that sections 95, 96, 126, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply to the Agreement.
3.7 This clause 3 does not exclude the operation of any equitable lien over any Goods or other property which may arise in favour of the Purchaser.
4.0 INSPECTION AND ACCEPTANCE
4.1 The Purchaser or its representatives are to have all reasonable and unrestricted access to the premises of the Supplier and its contractors and subcontractors, at all reasonable times and without the need to give prior notice. Inspection is not to be deemed acceptance of the Goods and/or Services nor does it detract from the Purchaser’s right to reject the Goods and/or Services if they are not in accordance with the Purchase Order.
4.2 The Purchaser reserves the right to reject in whole or in part any delivery of the Goods and/or Services ordered on the Purchase Order if it is found that the Goods and/or Services do not comply with the requirements, specifications or description stated in the Purchase Order or if the Supplier has failed to comply with any of its obligations under the Agreement. Any rejected Goods, including oversupply, will be returned at the Suppliers risk and expense (including but not limited to transport and other handling costs), and such expense will immediately become a debt due and payable by the Supplier to the Purchaser upon demand.
5.1 The Purchaser agrees to pay the Price specified in the Purchase Order for the full and proper supply of all Goods and for Services included in the Purchase Order.
5.2 Unless otherwise provided in the Purchase Order, the Price is not subject to rise and fall.
5.3 The Price is payable in Australian Dollars unless otherwise provided in the Purchase Order.
5.4 Payment of the Price by the Purchaser is subject to receipt of the Goods and/or Services in good order and on the basis that the conditions precedent to payment contained in this Agreement have been complied with.
5.5 Payment shall not constitute an acceptance by the Purchaser that the Goods and/or Services are not defective and shall not in any way affect the Purchasers rights under the Purchase Order including but not limited to those rights set out in clause 7.
5.6 The Price is deemed to be fully inclusive of all delivery, taxes, insurance, certification, packaging and transport costs unless otherwise specifically stated in the Purchase Order.
6.1 The Supplier is to submit its tax invoice or credit note in respect of the delivered Goods and/or Services, which shows the quantity of Goods and/or Services supplied, the Price applying to those Goods and/or Services and the Purchase Order Number. The tax invoice must show units of measure and Price consistent with the Purchase Order.
6.2 All tax invoices are to be forwarded to the address set out in the Purchase Order,
6.3 Unless otherwise stated in the Purchase Order, the Purchaser is to pay the amount properly invoiced by the Supplier (except to the extent that any invoice is in dispute) within forty-two (42) days from receipt of the tax invoice from the Supplier.
6.4 In addition to any other rights it may have under these Terms and Conditions or otherwise, the Purchaser may deduct from or set-off against any monies due or that become due to the Supplier:
(a) all costs, damages and expenses which the Purchaser may have paid for or incurred or is likely to pay or incur in connection with the supply of Goods and/or Services for which the Supplier is liable and which remain unpaid by the Supplier; and
(b) all debts owed by the Supplier to the Purchaser and which remain unpaid on any account whatsoever.
6.5 The Supplier is required to fully comply with all requirements of the A New Tax System (Goods and Services Tax) Act 1999 (GST Act). In particular:
(a) the Supplier must evidence to the Purchase in writing its registration for the GST Act and its valid Australian Business Number; and
(b) all invoices issued to the Purchaser by the Supplier pursuant to clause 6 of these Terms and Conditions must be in an Australian Taxation Office approved form of tax invoice.
6.6 The Purchaser is entitled to return to the Supplier unpaid any tax invoice that fails to fully comply with the Agreement and the Supplier must submit a replacement tax invoice which complies with the Agreement before it is entitled to payment.
6.7 Notwithstanding any other term or condition in the Agreement, the Supplier has no entitlement to payment for any claims or amount until such time as the requirements contained in this clause are complied with.
7.0 QUALITY & WARRANTY
7.1 Supplier represents and warrants to the Purchaser that where the Purchase Order relates to Goods:
(a) the Goods delivered to the Purchaser will correspond in all respects with the specifications and all representations made by the Supplier, including any sample provided by or on behalf of the Supplier;
(b) the Purchaser has the full benefit of any manufacturers warranties that may be applicable to the Goods or any part of the Goods;
(c) the Goods will be free from defects in design and workmanship;
(d) the Goods will be fit and safe for the purpose for which goods of the same kind are commonly supplied or bought and for any other purpose the Purchaser specifies;
(e) the Goods are of merchandisable quality, unencumbered and unless otherwise specified in the Purchase Order, new;
(f) the Goods Will meet any other standards specified by the Purchaser in the Purchase Order together with good industry practice;
(g) the Goods will comply with all laws, by-laws, statutes, regulations and standards in force in the jurisdiction in which they are supplied; and
(g) the Supplier has obtained all applicable permits, licences, exemptions, consents and approvals required for the Supplier to provide the Goods and/or Services.
7.2 The Supplier represents and warrants to the Purchaser that where the Purchase Order relates to Services, that the Services:
(a) will correspond in all respects with the specifications and all representations made by the Supplier;
(b) will be performed with due diligence and care;
(c) will be fit and safe for the purpose for which services of the same kind are commonly provided and for any other purpose the Purchaser specifies;
(d) will meet any other standards specified by the Purchaser in the Purchase Order together with good industry practice;
(e) will be undertaken by persons who are appropriately licensed. qualified and/or trained to provide those Services; and
(f) will comply with all laws, by-laws, statutes. regulations and standards in force in the jurisdiction in which they are supplied.
7.3 Where the Supplier repairs or replaces any Goods pursuant to any warranty, the Supplier is responsible for all costs that arise thereby, including all removal and transportation costs of the Goods from and to the Purchaser’s premises, labour costs and the costs of replacing or providing new parts for the Goods.
7.4 If the Supplier fails to repair or replace any Goods and/or Services pursuant to any warranty within a reasonable time the Purchaser may carry out or have carried out any replacement or repair, in which case all costs arising thereof will immediately become a debt due and payable by the Supplier to the Purchaser upon demand.
7.5 The Supplier warrants that the Goods and/or Services are free from defects for a period of not less than the period so specified in the Purchase Order, or if no period is specified, twelve (12) months from the date of delivery. The Supplier agrees that where any Goods and/or Services are found to be defective during that period and are re-supplied, this warranty will also apply to the re-supplied Goods and/or Services, with the 12-month period commencing on the date of completion of the re-supply.
7.6 If the provision of Goods does not comply with this clause 7, the Purchaser may terminate the Agreement at no cost to the Purchaser. The Goods will be returned at the Suppliers cost
7.7 If the provision of Services does not comply with this clause 7, the Purchaser may direct the Supplier to re-perform the Services at the Suppliers cost, and/or the Purchaser may terminate the Agreement at no cost to the Purchaser.
7.8 The Supplier warrants that it has the necessary skills, experience and expertise to supply the Goods and/or Services and will exercise those skills and expertise in supplying the Goods and/or Services.
8.0 INSURANCE AND INDEMNITY
8.1 The Supplier warrants that it maintains all insurances (and with appropriate coverage) required by law or which a prudent and responsible supplier of the Goods and/or Services the subject of the Agreement would maintain.
8.2 In addition to any insurance which the Supplier is by law required to effect, the Supplier is to procure and maintain at its own expense such policies of insurance as the Purchaser may reasonably require, having regard to the nature of the Goods and/or Services which are to be supplied.
8.3 Unless stated otherwise in the Purchase Order the Purchaser requires the Supplier to effect and maintain the following insurances:
(a) Public and product liability insurance policy for cover against liability to third parties for loss of or damage to property and the death of or injury to any person. The insurance shall:
(i) have a limit not less than $20,000,000 in respect of any one occurrence arising out of the same source or original cause; and
(ii) be maintained to provide continuity of cover for the Supplier’s potential liability at law.
(b) Workers compensation insurance to insure against liability for death of or injury to persons employed by the Supplier including liability by statute and at common law:
(i) to be maintained for the duration of the provision of the Goods and/or Services; and
(ii) which must indemnify the Purchaser against any liability which it may incur to persons employed by the Supplier, arising by virtue of applicable worker’s compensation legislation and at common law including any liability incurred as their deemed employer and contain a waiver of subrogation from the insurer in favour of the Purchaser and its personnel for act benefits and common law
(c) Motor vehicle insurance in respect of motor vehicles registered for use on public roads, liability coverage in respect of property damage of at least $10,000,000 in respect of each and every claim.
8 .4 To the fullest extent permitted by law, if the Supplier, its employees, servants or agents, enter onto any premises pursuant to or in relation to the Agreement, they do so at their own risk.
8.5 The Supplier indemnifies and will keep indemnified the Purchaser against all:
(a) loss or damage to property arising out of, or related to, in any way the performance of the Agreement;
(b) loss or damage resulting from death or personal injury arising out of or resulting from any act, error, omission, default or neglect of the Supplier, its employees, agents or contractors, including any breach of any one or more warranties under this Agreement;
(c) third party claims arising out of, or related to, in any way, the performance of this Agreement; and
(d) failure by the Supplier to comply with any law and the payment of taxes required by law in accordance with the Agreement.
9.1 The Purchaser may terminate the Agreement by notice in writing to the Supplier if:
(a) judgment is entered against the Supplier;
(b) any administrator, receiver, receiver and manager, liquidator, mortgagee or other external administrator is appointed to the Supplier or over any of its assets or undertakings;
(c) the Supplier is wound up or dissolved, or resolves to wind itself up or dissolve itself or
(d) the Supplier commits an act of bankruptcy or becomes insolvent; or ii enters into or endeavours to enter into any scheme or arrangement with creditors (except to reconstruct or amalgamate while solvent).
9.2 if the Goods covered by the Purchase Order are standard stock, the Purchaser is entitled to terminate the Agreement at any time by notice in writing to the Supplier, in which case the Purchaser will only be liable for those Goods already supplied prior to the termination;
9.3 If the Goods covered by the Purchase Order are Goods manufactured or fabricated to the specifications of the Purchaser then at any time prior to completion of the work to be performed, the Purchaser may (in its sole discretion):
(a) where the Supplier is not in breach of the Agreement, terminate the Agreement by giving seven (7) days’ written notice to the Supplier; or
(b) where the Supplier is in breach of the Agreement, terminate the Agreement by notice in writing to the Supplier.
9.4 Where the Agreement is terminated:
(a) in accordance with subclause 9.3a, the Purchaser will reimburse the Supplier’s reasonable out of pocket costs and expenses to the date of termination including its expenses in connection with the cancellation of any subcontracts; or
(b) in accordance with subclause 9.3b, the Purchaser will not be liable for any costs incurred by the Supplier as a result of the termination.
9.5 Upon payment in accordance with clause 9.4a, any Goods or partially completed Services become the property of the Purchaser and subject to its disposition.
9.6 Notwithstanding anything else contained in the Agreement, the total amount payable under subclause 9.4a is not to exceed the Price specified on the Purchase Order.
9.7 The Purchaser’s rights to terminate the Agreement under this clause are in addition to any rights or remedies which the Purchaser may have generally at law.
9.8 Notwithstanding anything else contained in the Agreement, the Purchaser is not liable to the Supplier for any indirect loss or damage, consequential toss or damage, special loss or damage, loss of profits, loss of revenue, failure to realise expected profits or savings, or other commercial or economic loss of any kind.
9.9 The Agreement may also be terminated by the Purchaser at any time immediately upon written notice in the event of the Supplier’s breach of any term or provision of the Agreement, if in the Purchaser’s sole opinion the breach is not capable of remedy. If the Agreement is terminated for the Supplier’s default, the Purchaser may have the Suppliers obligations performed by another party. The Supplier will be responsible for, and must indemnify and hold indemnified the Purchaser from and against, any damages, costs (including, without limitation, legal fees on a solicitor own client indemnity basis), losses and expenses, incurred by the Purchaser as a result of the breach.
10.0 DISPUTE RESOLUTION
10.1 If a dispute or difference arises between the Purchaser and the Supplier in respect f any fact, act, matter or thing arising out of, or in any way connected with the Agreement, the Purchase Order or any matter the subject thereof and either the Purchaser of the Supplier requires the dispute or difference to be resolved, then that party shall promptly give the other party a written notice giving details of the dispute.
10.2 Within 14 days of the party receiving a notice referred to in clause 10.1, the Purchaser and the Supplier and for their delegates must meet and attempt to resolve the dispute in good faith,
10.3 if, within 14 days of the meeting referred to in clause 10.2, the dispute is still not resolved, then, either the Purchaser of the Supplier may proceed to litigation, unless an alternative dispute resolution process is mutually agreed between the parties.
11.1 A provision of this Agreement can only be waived by the Purchaser if the waiver is in writing signed by the Purchaser or its delegated representative,
12.1 The Purchaser and the Supplier acknowledge that they contract with one another on an arms-length commercial basis. The Agreement does not create a partnership, employment, agency or joint venture relationship between the Purchaser and the Supplier.