Supplier/Sub-Contractor Purchase Order Terms and Conditions:
1. Purchase Order
1.1 A Purchase Order for Goods or Services is issued by Nicheliving Construction to the Supplier/Sub-Contractor. The Purchase Order is recorded on a document generated by Nicheliving Construction and titled “Purchase Order” bearing an identifying ‘Purchase Order number’ (Purchase Order Form). The Purchase Order terms and conditions applicable at the date of the Purchase Order apply to the Purchase Order unless otherwise stated in the Purchase Order Form.
1.2 The Purchase Order shall contain:
1.2.1 a description of the Goods and/or the Services;
1.2.2 applicable Prices;
1.2.3 delivery details; and
1.2.4 may contain special conditions in a separate section titled Notes Instructions and Special Conditions.
1.3 The Purchase Order may also include attachments referenced therein.
1.4 In case of any conflict or ambiguity, the Purchase Order Form (including any attachments) and special conditions (if any) shall have precedence over these Purchase Order terms and conditions.
1.5 Any reference by the Supplier/Sub-Contractor to the Supplier/Sub-Contractor’s own or any other terms and conditions in its quotation or other documentation presented by it in connection with the Purchase Order will have no effect on the Purchase Order.
1.6 The Purchase Order shall be effective from the date of issue as stated in the Purchase Order.
2.1 Upon receipt of the Purchase Order, the Supplier/Sub-Contractor shall check it for discrepancies. The Supplier/Sub-Contractor shall acknowledge the Purchase Order by signing and returning the Purchase Order to Nicheliving Construction within five (5) days of receipt of Purchase Order. In the absence of such acknowledgment, the performance of the Purchase Order by the Supplier/Sub-Contractor shall constitute acceptance of the Purchase Order.
2.2 The Purchase Order shall constitute the entire agreement between the Supplier/Sub-Contractor and Nicheliving Construction with respect to the Goods and/or Services and no representation or statements by any employee or agent not expressly stated in the Purchase Order shall be binding upon Nicheliving Construction.
3.1 The Supplier/Sub-Contractor, at its expense, unless otherwise provided for in the Purchase Order, shall deliver the Goods or perform the Services, on the date and at the place specified in the Purchase Order (“Delivery Site”) in which any required advance notification of delivery may be indicated.
3.2 Unless stated otherwise in the Purchase Order, the Supplier/Sub-Contractor at its cost shall unload the Goods at the Delivery Site.
3.3 If the Supplier/Sub-Contractor causes any damage to the Job Site or any equipment or goods thereon during delivery then the Supplier/Sub-Contractor must pay the whole cost of repairing that damage on demand.
4.1 Nicheliving Construction reserves the right at any time in relation to the Goods and/or Services to make a Revision to the Purchase Order to correct any errors or omissions therein or to make any changes including in respect of specifications, quantity and delivery.
4.2 A Revision shall be made through the issue of a document titled “Purchase Order” having the same Purchase Order number as the previously executed Purchase Order and a ‘revision number’ to signify the chronological order of issue of the respective Revisions.
4.3 The Supplier/Sub-Contractor must not make such corrections or changes until the resulting cost and time impacts have been agreed between the parties and the proper Purchase Order document with the appropriate ‘revision number’ has been authorised and issued by Nicheliving Construction and acknowledged and accepted by the Supplier/Sub-Contractor. Thereafter the Supplier/Sub-Contractor agrees to take immediate and necessary action to comply with such Revision to the Purchase Order.
5. Title and Risk
5.1 Title to and property in the Goods shall pass to Nicheliving Construction on the first to occur of payment of any part of the Price or delivery to the place specified in the Purchase Order. Such Goods yet to be delivered by the Supplier/Sub-Contractor shall be appropriately marked and identified as the property of Nicheliving Construction.
5.2 Risk in the Goods shall remain with the Supplier/Sub-Contractor until the time Nicheliving Construction takes delivery of the Goods unless otherwise expressly stated in the Purchase Order.
5.3 Any loss or damage to the Goods howsoever caused when under the Supplier/Sub-Contractor’s risk shall at its own cost be rectified by the Supplier/Sub-Contractor and thereafter when the risk in the Goods has transferred to Nicheliving Construction, the Supplier/Sub-Contractor shall be liable for any loss or damage to such Goods to the extent caused by its negligence, wilful act, misconduct, fault, breach of duty (statutory or otherwise) or breach of the Purchase Order.
6.1 Unless otherwise stated, the Price as indicated in the Purchase Order is in Australian currency excluding GST and is fixed and firm, not subject to escalation for the duration of the Purchase Order; and includes:
6.1.1 all charges for packaging, packing, insurance and delivery of the Goods to the Delivery Site in accordance with the Purchase Order;
6.1.2 the cost of any miscellaneous services of a kind which are commonly provided with the Goods and any miscellaneous items of a kind which are commonly used or supplied in the performance of (and in conjunction with) the Services;
6.1.3 the Supplier/Sub-Contractor’s compliance with its obligations under the Purchase Order; and
6.1.4 all taxes.
7. Invoicing and Payment
7.1 On delivery of the Goods and/or performance of the Services, the Supplier/Sub-Contractor must provide to Nicheliving Construction:
7.1.1 a Supplier/Sub-Contractor Reference Document;
7.1.2 if Nicheliving Construction directs, an Invoice which meets all the requirements of a valid invoice for GST purposes in a relevant jurisdiction,
which must include the information set out in clause 7.3.
7.2 The Supplier/Sub-Contractor must provide the Supplier/Sub-Contractor Reference Document or Invoice using an electronic invoicing system if directed to by Nicheliving Construction.
7.3 Any Supplier/Sub-Contractor Reference Document or Invoice must include the following details:
7.3.1 a reference to the Purchase Order and the relevant contract (if any) including the Purchase Order numbers and Revision numbers, if any;
7.3.2 a detailed description of the delivered Goods or performed Services, including the date of delivery and/or period of Services and the relevant quantity of the Goods and/or Services;
7.3.3 an individual reference number of the Supplier/Sub-Contractor for Nicheliving Construction to quote with remittance of payment;
7.3.4 the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order, including the amount of any applicable GST.
7.4 Nicheliving Construction requests, the Supplier/Sub-Contractor must provide Nicheliving Construction with all relevant records to calculate and verify the amount set out in any Supplier/Sub-Contractor Reference Document or any Invoice.
7.5 Nicheliving Construction will pay all Invoices that comply with clause 7.3 within thirty days (or such other period as Nicheliving Construction and the Supplier/Sub-Contractor agree) of the date on which the relevant invoice is generated (in the case of a recipient created tax invoice) or the date on which the relevant invoice is received from the Supplier/Sub-Contractor (in all other cases), except where Nicheliving Construction:
7.5.1 is required by law to pay within a shorter time frame, in which case Nicheliving Construction must pay within that time frame;
7.5.2 exercises any right to retain, withhold, reduce or set-off any amount due to the Supplier/Sub-Contractor;
7.5.3 disputes the Supplier/Sub-Contractor Reference Document or Invoice, in which case:
18.104.22.168 to the extent permitted by law, Nicheliving Construction may withhold payment of the disputed part of the Supplier/Sub-Contractor Reference Document or Invoice pending resolution of the dispute; and
22.214.171.124 if the resolution of the dispute determines that Nicheliving Construction must pay an amount to the Supplier/Sub-Contractor, Nicheliving Construction must pay that amount upon resolution of that dispute; or
7.5.4 is required by law to withhold a portion of payment for services rendered by a foreign Supplier/Sub-Contractor.
7.6 Nicheliving Construction may reduce any payment due to the Supplier/Sub-Contractor under the Purchase Order by any amount which the Supplier/Sub-Contractor must pay Nicheliving Construction, including costs, charges, damages and expenses and any debts owed by the Supplier/Sub-Contractor to Nicheliving Construction on any account whatsoever. This does not limit Nicheliving Construction’s right to recover those amounts in other ways.
7.7 In the event of an Adverse Event occurring Nicheliving Construction may give the Supplier/Sub-Contractor a Deferred Payment Plan whereupon the payment of the Price shall be in accordance with the Deferred Payment Plan and not the date for payment specified in the Purchase Order Form. Nicheliving Construction must pay the Price on the dates and by the instalments specified in the Deferred Payment Plan and so long as Nicheliving Construction pays the Price in accordance with the Deferred Payment Plan then it will not be in default and the Supplier/Sub-Contractor may not bring any action or commence any proceedings or make any claim or give notice to any insurer to demand payment of the Price other than in accordance with the Deferred Payment Plan.
7.8 The Supplier/Sub-Contractor acknowledges and agrees that Nicheliving Construction may not be able to reconcile invoices delivered by the Supplier/Sub-Contractor after a lengthy period of time because either:
7.8.1 the Supervisor engaged by Nicheliving Construction is no longer employed by them; and/or
7.8.2 the relevant records are no longer easily accessible or available for review; and/or
7.8.3 the Job Site to which the Goods were delivered or the Services performed is no longer accessible; and/or
7.8.4 the building contract between Nicheliving Construction and the owner of the Job Site has been concluded so that Nicheliving Construction is not able to make any further claims against the owner,
and in those circumstances Nicheliving reserves the right to reject in whole or in part any invoice of a Suppler/Sub-Contractor which:
7.8.5 Nicheliving Construction has previously rejected of Nicheliving Contract; and/or
7.8.6 is reissued by the Supplier/Sub-Contractor later than 3 months after the Goods have been supplied or the Services performed.
This clause may be pleaded as a law to any action or proceedings commenced by the Supplier/Sub-Contractor in respect of the monies claimed in the invoice.
8.1 The Supplier/Sub-Contractor shall, at its cost, effect and maintain until the risk in the Goods passes to Nicheliving Construction adequate material loss or damage insurance at least to the full replacement value of the Goods including adequate transit insurance and also covering unloading if the Supplier/Sub-Contractor is required to unload the Goods. Such insurance shall cover the parties’ respective rights and if required by Nicheliving Construction shall be in the joint names of the parties.
8.2 The Supplier/Sub-Contractor shall carry:
8.2.1 Workers Compensation/Employer’s Liability required by law with where legally permitted an indemnity for Nicheliving Construction (including its client as applicable) and ensure that its sub-Supplier/Sub-Contractors have similarly insured its employees;
8.2.2 adequate public and product liability insurance; and
8.2.3 any other insurance pursuant to clause 15.1.3 (if applicable) or as required by law.
9.1 The Supplier/Sub-Contractor shall ensure that all drawings and data used have been certified for construction and that Goods are manufactured according to such drawings and data or any subsequent revisions thereof.
9.2 No works are to be performed by the Supplier/Sub-Contractor in reliance of preliminary or building permit drawings but only construction issued drawings.
10.1 The Supplier/Sub-Contractor must ensure that:
10.1.1 the Goods and/or Services supplied by the Supplier/Sub-Contractor match the description of the Goods and Services in the Purchase Order;
10.1.2 if the Supplier/Sub-Contractor gave Nicheliving Construction a sample of the Goods before Nicheliving Construction issued the Purchase Order, the Goods correspond with the sample;
10.1.3 if the Supplier/Sub-Contractor provided Nicheliving Construction with a demonstration of the Services before Nicheliving Construction issued the Purchase Order, the Services correspond in nature and quality with the Services demonstrated;
10.1.4 if the Supplier/Sub-Contractor showed Nicheliving Construction a result achieved by the Services before Nicheliving Construction issued the Purchase Order, the Services correspond in nature and quality with the services that achieved that result;
10.1.5 the Services are performed with the professional skill, care and diligence expected of a skilled and experienced professional Supplier/Sub-Contractor;
10.1.6 the Goods and Services are fit for the purposes set out in, or which an experienced professional Supplier/Sub-Contractor would reasonably infer from, the Purchase Order;
10.1.7 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;
10.1.8 any items which the Supplier/Sub-Contractor uses or supplies in conjunction with the Services are new and of merchantable quality and comply with any standards specified in the Purchase Order and are fit for their usual purpose and any purpose described in the Purchase Order; and
10.1.9 Nicheliving Construction has the full benefit of any manufacturer’s warranties that may be applicable to the Goods (and the Supplier/Sub-Contractor must pursue any manufacturer’s warranties on Nicheliving Construction’s behalf if Nicheliving Construction so requests).
10.2 The Supplier/Sub-Contractor shall (at the option of Nicheliving Construction) either replace or repair and make good any Goods or Services or parts of Goods or Services supplied by it found to be defective or in any way unsuitable for the purpose intended for a period of twenty four (24) months from date of delivery of the Goods or performance of the Services (“Warranty Period”). If the Supplier/Sub-Contractor repairs or replaces Goods during the Warranty Period, then those Goods repaired or replaced have a further warranty for a period of twelve (12) months from the date such repairs or replacements were completed.
10.3 If the Supplier/Sub-Contractor fails to replace, repair or make good any defective Goods or Services during the Warranty Period when requested to do so then Nicheliving Construction may:
10.3.1 remedy the defective Goods or Services itself; and
10.3.2 recover the cost thereof from the Supplier/Sub-Contractor on a full indemnity basis.
11.1 The Supplier/Sub-Contractor warrants that Goods supplied other than Goods supplied in accordance with technical plans or drawings provided to the Supplier/Sub-Contractor by Nicheliving Construction do not infringe any patent, copyright, design or trademark (whether foreign or domestic) which any person may in any way be entitled to and shall save harmless and indemnify Nicheliving Construction from and against all claims and proceedings for or on account of such infringements in respect of the Goods supplied by the Supplier/Sub-Contractor and from and against all related claims, demands, proceedings, damages, costs, charges and expenses.
12.1 Nicheliving Construction may at any time during the course of manufacture or performance of the Services or otherwise inspect the Goods to be supplied or Services (subject to Nicheliving Construction first giving the Supplier/Sub-Contractor reasonable notice of such inspection). Inspection by Nicheliving Construction shall neither relieve the Supplier/Sub-Contractor of its obligations under the Purchase Order or otherwise nor waive Nicheliving Construction’s rights or remedies provided under the Purchase Order or otherwise.
13.1 The Supplier/Sub-Contractor shall be liable for all or any damage, loss or destruction to any Goods or property resulting from improper packaging or handling by the Supplier/Sub-Contractor.
14. Test Certificates
14.1 If Test Certificates for Goods are required by the Purchase Order those must be forwarded to Nicheliving Construction upon completion of testing.
15. Erection Work and Services
15.1 When erection work and services on an external site (“Works”) away from the Supplier/Sub-Contractor’s workshops or premises form part of the Purchase Order, the following provisions shall apply:
15.1.1 All invoices shall be accompanied by a schedule certified by Nicheliving Construction of the Works completed.
15.1.2 Progress payments shall not be made unless so stated in the Purchase Order.
15.1.3 The Supplier/Sub-Contractor shall obtain within ten (10) days of receipt of the Purchase Order and keep in effect during the currency of the Purchase Order such insurance as necessary to adequately protect the Supplier/Sub-Contractor and Nicheliving Construction in respect of liability under law and shall lodge certificates of currency with Nicheliving Construction.
16. Sub-Purchase Orders and Assignment
16.1 The Supplier/Sub-Contractor shall ensure that any sub-purchase or sub-supply agreements relating to the Purchase Order contain the same terms and conditions as contained in the Purchase Order.
16.2 The Purchase Order shall be binding upon and inure to the benefit of the parties hereto and (unless such interpretation shall be repugnant to the sense or context) their respective executors, administrators, personal representatives, successors and assigns but shall not be assignable by the Supplier/Sub-Contractor without the consent of Nicheliving Construction.
17. Waiver and Amendment
17.1 Neither a waiver of any provision of the Purchase Order nor consent to any departure therefrom shall be effective unless given in writing by Nicheliving Construction.
17.2 Except as provided by law or equity or elsewhere in the Purchase Order, none of the provisions of the Purchase Order shall be varied or amended without the prior written consent of the parties.
18.1 Nicheliving Construction may at its option cancel the Purchase Order or any part thereof at any time. Nicheliving Construction’s liability will be to pay for materials manufactured and supplied or Services performed in accordance with the Purchase Order up to the date of cancellation and for costs of materials and other items ordered in connection with the Goods or Services for which the Supplier/Sub-Contractor is legally bound to pay. Upon such payment, title to and property in all those materials and other items shall pass to Nicheliving Construction.
19. Termination for Default
19.1 If the Supplier/Sub-Contractor fails to make delivery; fails to perform within the time specified in the Purchase Order; delivers nonconforming Goods; fails to make progress so as to endanger performance of the Purchase Order; then Nicheliving Construction may cancel the Purchase Order or part thereof and the Supplier/Sub-Contractor shall be liable for all costs incurred by Nicheliving Construction in purchasing similar Goods elsewhere.
20.1 Nicheliving Construction may suspend all or part of the supply of the Goods at any time for any period of time by notice in writing to the Supplier/Sub-Contractor. The Supplier/Sub-Contractor must comply with the notice and recommence supply when notified by Nicheliving Construction. The Supplier/Sub-Contractor will not be entitled to any additional payment arising as a result of the suspension.
21.1 Insofar as this clause 21 applies to property, it applies to property other than the Goods.
21.2 The Supplier/Sub-Contractor shall be solely responsible for and shall indemnify and hold Nicheliving Construction harmless against all claims, liens, demands, proceedings, judgements, fines, penalties, costs (including legal costs),losses, liabilities and other expenses whatsoever for any personal injury, including death and disease or loss of or damage to any property (including Nicheliving Construction’s personnel and property) arising directly or indirectly out of or as a consequence of the performance of the Purchase Order or by failure of the Supplier/Sub-Contractor to perform any of its obligations under or to comply with requirements of the Purchase Order irrespective of sole or contributory negligence, misconduct, fault or breach of duty (whether statutory or otherwise) on the part of Nicheliving Construction.
21.3 However, in circumstances where the Supplier/Sub-Contractor is performing Works (as defined in clause 15), the Supplier/Sub-Contractor’s liability to Nicheliving Construction under the foregoing paragraph that arise as a direct result of such Works shall be reduced proportionally to the extent that an act or omission of Nicheliving Construction may have contributed to the injury, death, loss or damage.
21.4 The provisions of Part 1 F of the Civil Liability Act 2002 (WA) are excluded from operation with respect to any matter arising out of or in connection with the Purchase Order.
22.1 If at any time the Supplier/Sub-Contractor discovers that the time of delivery will not be met, it shall notify Nicheliving Construction within two (2) days of discovery stating cause of delay and earliest possible delivery date.
22.2 Nicheliving Construction may thereupon (without prejudice to any other rights) terminate all or part of the Purchase Order.
22.3 If the Supplier/Sub-Contractor is delayed in delivery of the Goods or performance of the Services by unforeseeable occurrences or causes such as acts of God, state or nationwide strikes, fire or other causes of a similar nature beyond the Supplier/Sub-Contractor’s reasonable control, the Supplier/Sub-Contractor shall notify Nicheliving Construction within two (2) days of the commencement of each such occurrence or cause and request an extension of time. If approved by Nicheliving Construction, any extension of time shall be granted in writing.
22.4 The Supplier/Sub-Contractor shall not be entitled to and hereby waives any and all claims to increased compensation for/or damages which it may suffer from any such unforeseeable causes.
23.1 Nicheliving Construction shall be granted access to any and all parts of the Supplier/Sub-Contractor’s work premises and those of its sub-Supplier/Sub-Contractors.
23.2 The Supplier/Sub-Contractor shall expedite all Goods ordered through sub-purchase orders on a regular basis and visit sub-Supplier/Sub-Contractor’s facilities or premises when necessary.
24. Consequential Loss
24.1 Neither Nicheliving Construction nor the Supplier/Sub-Contractor shall be liable to the other for any consequential loss including but not limited to loss of contract, business opportunity, profit or anticipated profit (or any loss of a similar nature) sustained by the other party.
25. Applicable Law
25.1 The Purchase Order and the rights and obligations of the parties hereto shall be construed in accordance with and be governed by the laws applicable in the State of Western Australia. Each of the parties hereto hereby agrees that any legal action or proceedings with respect to its obligations hereunder shall be brought in the State of Western Australia and each of the parties hereto hereby submits to such jurisdiction.
26. Service of Notice
26.1 Unless otherwise agreed to by the parties, any notice (and other documents) required or permitted to be given or delivered under the Purchase Order shall be delivered and addressed to the party at the addresses set forth in the Purchase Order. Notice shall be deemed to have been received by any party, and shall be effective:
26.1.1 on the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission (including any attached scanned documents), receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices; or
26.1.2 on the third day after which such notices deposited, if mailed by certified or prepaid post.
27.1 The Supplier/Sub-Contractor undertakes and agrees:
27.1.1 to hold in strict confidence all Confidential Information;
27.1.2 not to disclose or permit or cause the Confidential Information to be disclosed to any person other than any of its personnel who require the Confidential Information for the purposes of the Purchase Order; and
27.1.3 except and solely to the extent necessary for the performance of the Purchase Order, not to make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from the Confidential Information) unless the Supplier/Sub-Contractor has obtained the prior written consent of Nicheliving Construction to so do (which consent may be withheld by Nicheliving Construction in its discretion or given on such terms as it sees fit);
27.2 This clause does not apply to:
27.2.1 information after it becomes generally available to the public other than as a result of the breach of this clause 27; or
27.2.2 the disclosure of information in order to comply with the applicable Law or legally binding order of any court, government agency or recognised stock exchange, provided that prior to such disclosure the Supplier/Sub-Contractor gives notice to Nicheliving Construction will full particulars of the proposed disclosure.
27.3 If the Supplier/Sub-Contractor discloses the Confidential Information to its personnel in accordance with clause 27.1.2 or with the consent of Nicheliving Construction, it must at its own expense ensure at all times that the person to whom the Confidential Information is disclosed does not disclose the information except in accordance with this clause 27.
27.4 A breach of any of the conditions contained in a consent granted pursuant to clause 27.1.1 is deemed to be a breach of the Purchase Order.
27.5 The obligations of this clause 27 are in addition to and do not diminish the obligations of the Supplier/Sub-Contractor in respect of secret and confidential information at common law or under any statute or trade or professional custom or use.
28.1 The following definitions shall be used for the purpose of interpreting the Purchase Order and these Purchase Order terms and conditions:
“Adverse Event” means an event which Nicheliving Construction (acting reasonably) considers may adversely affect its ability to pay the Price when due pursuant to the Purchase Order;
“Confidential Information” means any information (in whatever form) of a confidential nature (or which the Supplier/Sub-Contractor or its personnel ought reasonably expect to be confidential) that relates to the business, affairs or activities of Nicheliving Construction and includes without limitation the Purchase Order;
“Deferred Payment Plan” means a written notice from Nicheliving Construction to the Supplier/Sub-Contractor;
(a) that the Price will not be paid on the date specified in the Purchaser Order; and
(b) setting out the dates and instalment amounts that the Price will be paid so long as the last instalment is paid not later than 90 days after the Price should have been paid pursuant to the Purchase Order;
“Goods” means machinery, plant, equipment, apparatus, materials, articles, erection works, services and things of all kinds to be supplied, delivered or performed by the Supplier/Sub-Contractor in accordance with the Purchase Order;
“Nicheliving Construction” means Projex Management & Construction Pty Ltd (ABN 86 114 605 408) trading as Nicheliving Construction Builders Registration Number 12153;
“Price” means the price for the Goods and/or the Services specified in the Purchase Order;
“Purchase Order” has the meaning given in clause 1 and it is an agreement between Nicheliving Construction and the Supplier/Sub-Contractor comprised of the Purchase Order Form, these Purchase Order terms and conditions, any special conditions and attachments. The Purchase Order supersedes all previous communications and negotiations and shall be acknowledged by Nicheliving Construction as sole authority for charging Goods or Services to its account;
“Revision” has the meaning given in clause 4;
“Services” means the services to be performed by the Supplier/Sub-Contractor in accordance with the Purchase Order;
“Supplier/Sub-Contractor” means the Supplier/Sub-Contractor or sub-contractor (including an individual, firm or corporate entity) so named in the Purchase Order Form who is bound to supply and deliver the Goods or perform the Services;
“Supplier/Sub-Contractor Reference Document” means a delivery document, dispatch note, time sheet, claim form or such other document which evidenced the delivery of the Goods or the performance of the Services.