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Council's Purchase Order General Terms and Conditions

General Terms and Conditions

This information is current as at 18 July 2014

  1. Acknowledgement by Contractor and Suppliers
  2. Purchase order
  3. Contractors invoices
  4. Payment of accounts
  5. Default by a Contractor
  6. Performance by Contractor
  7. General warranties to goods
  8. Assignment
  9. Subcontractors
  10. Applicable law
  11. Indemnity
  12. Successors and assigns
  13. Variations
  14. Inconsistent provisions
  15. Suspension of Council's obligations
  16. Infringement of intellectual property rights
  17. Dispute resolution
  18. Environmental considerations
  19. Risk management and occupational health and safety
  20. Termination
  21. No waiver
  22. GST
  23. Proportionate liability - exclusion
  24. Statement of Business Ethics

  1. Acknowledgement by Contractor and Suppliers

    1. The Contractor acknowledges that these terms and conditions, as duly executed by the Contractor or its nominated agent, assign, employee, nominee or representative, comprise the terms and general conditions upon which it will be requested by the Council to provide goods or services on any and each occasion Council makes a purchase order as set out in clause 2 below.

    2. By execution of these terms and conditions the Contractor agrees to be bound by these terms and conditions in the provision of any good or service by it to the Council under a purchase order.
  1. Purchase order

  1. There will be no contract or agreement between Council and any Contractor unless Council issues to that Contractor a purchase order for the provision by the Contractor of a good or service to it.

  2. Council will have no liability to any Contractor or any other party pursuant to a contract or agreement in the absence of that Contractor being provided with a purchase order by Council complying with the requirements set out in clause 3 below.

  3. A purchase order issued by the Council will identify:

    1. Supplier
    2. Delivery instructions
    3. Order number
    4. Order date
    5. Delivery date required
    6. Ordered by
    7. Supplier contact details
    8. Description of goods or service
    9. Unit of measure
    10. Unit cost
    11. Extended cost
    12. GST
    13. Total cost
  1. Contractors invoices

  1. The Contractor may render a Tax invoice at the completion of the supply of goods or services the subject of a purchase order or otherwise as agreed.

  2. As a term of this agreement a Contractors invoice must contain:

    1. The price of the goods and/or services provided by the Contractor exclusive of GST;
    2. Rockdale City Council purchase order number:
    3. The GST component of the Tax invoice, if any, separately and distinctly;
    4. A grand total of the invoice.

  3. The Contractor acknowledges that any invoice provided by it that fails to comply with the requirements set out above in clause 3.2 and clause 22 below dealing with GST is a non complying invoice and Council will have no liability to make any payment under that invoice and there will be no liability crystallising until an tax invoice has been duly rendered in compliance with the terms of this agreement.
  1. Payment of accounts

  1. Council will not be contractually obliged to make any payment to a Contractor earlier than 30 days from the date of any invoice provided by the Contractor complying with the requirement set out in clause 3.2 above.

  2. Notwithstanding the terms of clause 4.1 above, Council may pay any invoice rendered by a Contractor at an earlier time in its absolute discretion and any earlier payment by Council in these terms does not constitute any representation upon which the Contractor could rely giving rise to a course of conduct which varies, abrogates or alters the regime set out in clause 4.1 above.
  1. Default by a Contractor

  1. A Contractor defaults under this agreement if it fails to perform its duties and obligations pursuant to any purchase order issued by Council to it in any manner other than as:

    1. Prescribed by this agreement; and/or
    2. Prescribed by the purchase order issued by Council to it.
  1. Performance by Contractor

  1. Where the contract is for the supply of goods by the Contractor to the Council, the goods will correspond with the description or requirement of the Council strictly and absolutely.  It is not sufficient that the bulk of the goods delivered by the Contractor to Council only comply with the purchase order.

  2. In the supply of any goods Council relies on the Contractor's skill and judgement and the goods provided shall be reasonably fit for the purpose for which the Council requests them.  The Contractor has a duty under this agreement to enquire of the Council as to the purpose it seeks to acquire the goods for so as to comply with his term of the contract.

  3. In any purchase order for services the Contractor must provide those services with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.

  4. The Contractor shall deliver the goods and/or provide its services at the time and place specified:

    1. In the purchase order; and/or
    2. At the direction of a representative of the Council.

  5. All goods provided by a Contractor shall be new and comply with the highest relevant commercially acceptable standards from the manufacture and operation of such goods available at the date of the issue of the purchase order by Council.  In the event that the Contractor considered it appropriate to provide a good that is not of the highest relevant commercially acceptable standard, it must set out in writing to Council the basis upon which that good is fit for the purpose Council seeks to employ it for and the commercial and operational benefits to Council of the provision of the lesser quality good.  The Contractor may only deliver a good not of the highest relevant commercially available quality if Council agrees to any request by a reply in writing.
  1. General warranties to goods

  1. The Contractor agrees to assign, novate or transfer to Council, as may be necessary, any manufacturers warranty in support of the operation of goods or services provided by a Contractor pursuant to a purchase order.

  2. In obtaining or procuring a good for the purposes of satisfying a purchase order a Contractor must obtain a manufacturers warranty that:

    1. Is for the longest duration commercially offered by that manufacturer; and/or
    2. Covers to the fullest extent possible all aspects of the performance and operation of the good so that the manufacturer must repair or replace at no cost to Council the good or some part or component of the good.

  3. In addition to any manufacturers warranty, the Contractor warrants that any good provided pursuant to a purchase order will be of a satisfactory standard of performance and will take all steps and use its best endeavours at all times to ensure that any good that does not meet such standards will be replaced at its cost and at no cost to Council as a term of this contract.

  4. If a Contractor supplies a good or service that does not comply strictly and on all respects with the purchase order Council may:

    1. In its absolute discretion accept any or all of the supply of the good or services;
    2. To the extent it accepts part of any supply of good or services, the Contractor is only entitled under this contract to invoice for the good or supplies as accepted by Council; or
    3. Reject any or all of the supplies proffered by the Contractor.

  5. The Contractor warrants that any good provided by it to Council shall be free from any claim or any assertion of a proprietary right by any third party and that title or ownership to that good passes immediately to Council upon delivery of the good irrespective as to whether the Contractor has rendered an invoice or any moneys remain due and owing pursuant to an invoice previously rendered for the provision of that good.
  1. Assignment

  1. The Contractor may not assign or otherwise transfer any of:

    1. Its obligations; or
    2. The benefit of or encumber any rights under these terms and conditions,

without the written consent of Council.

  1. Subcontractors

  1. If the Contractor wishes to employ a subcontractor or some other party in the performance of its obligations under this contract or pursuant to a purchase order in the delivery or provision of a good or service, it must take no step in relation to the retention of any subcontractor unless and until:

    1. It notifies Council in writing of the subcontracting entity to undertake the work;
    2. It identifies in writing the necessity for a subcontractor to be engaged to assist in the provision of goods or services;
    3. Council confirms or agrees in writing to the appointment of that subcontractor.

  2. The Contractor remains at all times liable for the performance of its obligations pursuant to the issue of any purchase order by Council and it is entirely and completely responsible for the performance and conduct of the subcontractor in the provision or delivery of a good or service.

  3. The Contractor acknowledges that upon the appointment of a subcontractor there is no contractual relationship between Council and the subcontractor and that there is no liability that Council has to that subcontractor directly or indirectly or at all as a result of the appointment of the subcontractor by the Contractor pursuant to the procedure set out in clause 9.1 above.

  4. The Contractor expressly acknowledges that it is not the agent of the Council for the purpose of retaining a subcontractor/s or at all.
  1. Applicable law

  1. The validity, interpretation and performance of this agreement and any purchase order issued by Council under it will be governed by and construed in accordance with the law of the state of New South Wales which Council and the Contractor acknowledge is the proper law of this Contract.
  1. Indemnity

  1. The Contractor agrees to indemnify the Council from and against all claims, demands, actions, proceedings, costs, expenses, damages, loss and other liabilities whatever, however caused or arising in connection with or in respect of or incidental to:

    1. The issuance of a purchase order by Council on the Contractor;
    2. The performance of its obligations under these terms and conditions or pursuant to a purchase order by the Contractor;
    3. Any liability alleged by any third party or any entity against the Council pursuant or consequent to the issuance of a purchase order; and/or
    4. The performance by a Contractor of its obligations under this agreement.

  2. Without in any way limiting the breadth of the indemnity referred to in clause 11.1 above, the Contractor agrees that it shall at all times indemnify and hold harmless the Council, its officers, employees, assigns, agents, nominees and representatives from time to time.
  1. Successors and assigns

  1. This agreement binds and enures the benefit of the parties, their respective successors (including in the case of natural persons, their legal personal representatives) and permitted assigns.
  1. Variations

  1. This agreement may not be varied by the Contractor.

  2. Council may vary this agreement from time to time in writing by notifying of the precise terms of the variation and the date or time upon which the variation is to take effect.
  1. Inconsistent provisions

  1. If there is any inconsistency between a provision of this agreement and a purchase order, any  other document having contractual force or any invoice rendered by the Contractor the provisions of this document prevail over the provisions of any other.
  1. Suspension of Council's obligations

  1. The obligations of the Council will be suspended during the time and to the extent that the Council is prevented from or delayed in complying with its obligations by force majeure.  Force majeure means a circumstance beyond the reasonable control of Council and which occurs without the fault or negligence of Council.  If, after a reasonable period of time, the force majeure event makes it impossible for Council to perform its obligations under the contract, Council is at its election able to terminate the contract.
  1. Infringement of intellectual property rights

  1. The Contractor warrants that the rights granted under this agreement and its conduct of and incidental to the performance of any work or undertaking as a result of the issue to it by Council of a purchase order do not and will not infringe any patents or other intellectual or industrial property of third parties.  The Contractor indemnifies Council from and against all claims, demands, actions, proceedings, costs, expenses and liabilities for any infringement or alleged infringement.
  1. Dispute resolution

  1. "Dispute" means any disagreement or differences of view as to these terms and conditions, the terms of the purchase order, the terms of an invoice, the meaning given to or proper construction of any of these documents and the performance of part or all of a party's obligations pursuant to these terms and conditions, a purchase order or service of an invoice.

  2. Any party who seeks to allege a Dispute must set out in writing addressed to a nominated representative of the other party:

    1. the nature of the dispute alleged;
    2. the relevant clause or right alleged to have been infringed or breached;
    3. the consequence of the infringement or breach as alleged;
    4. the remedies sought (Dispute notice).

  3. Within 14 days of the receipt of a Dispute notice pursuant to clause 17.2, the other party must in writing respond directly to the matters alleged and raise any further relevant matter it contends as being material to the dispute as alleged (Dispute reply).

  4. Within a further 14 days, representatives of the respective parties are to meet on a without prejudice basis to discuss the Dispute and the potential resolution of it (Settlement meeting).

  5. It is expressly agreed that Dispute notice, Dispute reply or Settlement meeting are communications made between parties in a dispute in connection with an attempt to negotiate a settlement of that dispute and it is intended that these communications be secret and without prejudice for the purposes of facilitating the resolution of the dispute, to the extent this is possible.

  6. It is agreed by the Contractor and the Council that if there is no resolution of the dispute, the parties may pursue their rights at law as appropriate including, but not limited to, the commencement of court or tribunal proceedings.
  1. Environmental considerations

  1. The Contractor acknowledges that Council is committed to the local environmental controls and safeguards to protect the built and natural environments within the municipality.

  2. The Contractor acknowledges it will be required to effect adequate controls in accordance with statutory requirements to ensure protection of the environment.
  1. Risk management and occupational health and safety

  1. The Contractor must comply at all relevant times with all relevant obligations with regard to the Work Health and Safety Act 2011 and any other applicable statute or common law in relation to occupational health and safety and protection of the environment from time to time for the purpose of:

    1. Ensuring the health and safety of its employees;
    2. Ensuring the health and safety of its Contractors;
    3. Ensuring the health and safety of Council representatives;
    4. Ensuring the health and safety of members of the community generally.
  1. Termination

  1. Council may terminate this agreement if:

    1. There is a failure by the Contractor to perform or observe any of the provisions of this agreement;
    2. Without cause or breach it provides to the Contractor not less than fourteen days notice in writing of the termination of the Contract, such termination to be effective from the date nominated by Council but being no less that thirty days from any notice;
    3. If the Contractor is an individual person, they die or commit an act of bankruptcy;
    4. The Contractor is a corporation, a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the Contractor, an application or order is made for the winding up, liquidation or dissolution of the Contractor or any steps are taken to pass a resolution for the winding up, liquidation or dissolution of the Contractor;
    5. The Contractor suspends payments of its debts generally or becomes unable to pay its debts when they are due or enters into or proposes to enter into any arrangement, scheme or composition with its creditors or any of them;
    6. Any judgement or distress or execution is made upon or against any of the assets of the property of the Contractor and such distress or execution is not set aside or satisfied within 7 days of the date of the issue of such judgement or distress.

  2. For the purposes of abundant clarity, Council's right to terminate is for any breach of this agreement irrespective as to whether the breach is of a fundamental term or otherwise.

  3. Upon termination of the agreement, the Council shall be under no obligation to pay for any supplies, materials, specifications, goods or services with a wholly or partly manufactured or yet to be delivered but in the possession of the Contractor as at the time of termination.
  1. No waiver

  1. No waiver of compliance of any provision of this agreement shall be effective unless made in writing and signed by an employee, officer or representative of Council and in any event shall not relate to any other provision and shall be strictly construed and shall not be deemed to be a continuing waiver of the provision in question.

  2. No failure, delay, relaxation or indulgence by Council in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right.  No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.
  1. GST

  1. Any Contractors invoice sent pursuant to this Contract or a purchase order must comply in all relevant regards and respects with relevant GST legislation as enacted from time to time, and in particularly A New Tax System (Goods & Services Tax Act 1999 (Cth).

  2. Contractors not registered for GST must provide a valid Australian Business Number (ABN) on any invoice or Statement Supplier.  In the absence of a valid ABN appearing on an invoice Council will withhold 48.5% of the invoice value to be remitted to the Australian Taxation Office as withholding tax.
  1. Proportionate liability - exclusion

  1. The provisions of Part 4 of the Civil Liability Act 2000 (NSW) (the CLA) are specifically excluded from these terms and conditions and have no operation or application to the rights, obligations and liabilities of the Council and the Contractor under these terms and conditions with respect to any matter to which Part 4 of the CLA applies.

  2. To the fullest extent permitted by law, the parties agree that the provisions of Part 4 of the CLA are specifically excluded from any sale, contract or any other agreement entered into pursuant to these terms and conditions by the Contractor and have no operation or application to the rights, obligations and liabilities of the parties under any subcontract or any other agreement entered into pursuant to these terms and conditions by the Contractor with respect to any matter to which Part 4 of the CLA applies.

  3. Without limiting sub-clauses 23.1 and 23.2, wherever the Contractor, by its act, default or omission, directly or indirectly causes or contributes to loss, expense, cost or damage (whether direct, consequential or otherwise) to the Council, and in the event the Contractor can apportion blame and claim contribution on another person or persons, then to the fullest extent permitted by law, the Contractor is fully liable to the Council for that loss, expense, cost or damage whether or not there are others (as well as the Contractor) who may be proportionally or partially liable to the Council including a subcontractor, the preferred tenderer (or others for whom the Contractor is responsible).

  4. As between the Council and the Contractor, any loss, expense, cost or damage caused to or resulting to the Council by the conduct, be it direct or indirect, be it intentional or unintentional of the Contractor, is not to be apportioned by the Contractor between those who are responsible, or those it alleges are responsible for the loss, expense, cost or damage as it contends.  For the purpose of abundant clarity, the Contractor agrees to be fully and completely liable to the Council for any loss Council suffers whether direct, consequential or otherwise as a result of the performance of the contract by it or any subcontractor appointed by it.

  5. The Contractor shall ensure that all of its subcontracts and other agreements entered into pursuant to, or in furtherance of, these terms and conditions, contain and repeat sub-clauses 23.1 to 23.4 [necessary changes being made] together with a further sub-clause that states that the Contractor (or any other party or entity for whom the Contractor is responsible) is put on notice that sub-clauses to the effect of sub-clauses 23.1 to 23.4 also appear in the contract between the Council and the Contractor and that the subcontractor (or others for whom the Contractor is responsible) agree to be bound by those sub-clauses to the fullest extent permitted by law.
  1. Statement of Business Ethics

  1. Council partners with and engages the private sector to implement many of its responsibilities. Appropriate working relationships with the private sector enhance the efficiency and effectiveness of Council's many and varied services.

    Council's Statement of Business Ethics clarifies the relationship between the private sector and Council. It provides, in one document, important information about Council's values, business principles, expectations of staff and private sector entities, and how to report unethical behaviour. In particular, the Statement outlines the Principal's position on:

    - Gifts and benefits (including hospitality)
    - Conflicts of interest
    - Confidentiality
    - Communications between Council and the private sector
    - Secondary employment
    - Expectations of both Council and contractors (including sub-contractors)

    Council requires that contractors, their employees and sub-contractors to comply with this Statement of Business Ethics

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