Terms and Conditions for the Supply of Goods and/or Services
These terms and conditions apply to all supplies of Goods and/or Services by the Contractor to the Recipient unless agreed otherwise in writing. These terms and conditions operate to the exclusion of all other terms and conditions proposed or notified by the Contractor, irrespective of whether such proposals or notifications were made prior to, or after, the supply of Goods and/or Services.
1. Nature of appointment and acceptance.
1.1 Nothing in these terms and conditions, either expressed or implied, is: (a) to be interpreted as giving rise to the employment of any of the Contractor, or of any Personnel of the Contractor, by the Recipient; or (b) as giving rise to any relationship of trust, agency, partnership, joint venture, or any other relationship, between the Recipient and the Contractor, other than the relationship of a principal and its contractor.
1.2 The Contractor warrants that it carries on a business of providing the Goods and/or Services (as applicable), and further warrants that the Contractor will have the overall responsibility of fulfilling an Order in the course of the Contractor’s business, and that any person performing work for an Order will be engaged directly by the Contractor and not the Recipient.
1.3 The Contractor acknowledges that it is not an agent of the Recipient, and has no authority to bind the Recipient, and that it is free to supply similar goods and services to any third party at any time where it has not agreed to do so for the Recipient. The Contractor further acknowledges that it must use its own skill and judgement as to how Services are to be provided.
1.4 The Recipient will not be bound by any Order unless it is issued by or on behalf of the Recipient in writing. The supply of Goods and/or Services by the Contractor constitutes acceptance by the Contractor of the Order and these terms and conditions.
2. Supplies. The Contractor must ensure that:
2.1 all Goods are new, of merchantable quality, are made of good materials and are of good workmanship, and are free from defects;
2.2 all Goods are fit for the purpose for which goods of the same kind are commonly supplied and any purpose which the Recipient makes known to the Contractor, and are accompanied by any necessary instructions, technical documents, operating and service manuals and applicable warranties;
2.3 it performs the Services in a timely manner, safely, with all necessary skill, care and diligence to the reasonable satisfaction of the Recipient;
2.4 it performs its obligations in accordance with these terms and conditions, the Order and all reasonable directions of the Recipient (including without limitation as to timing), all applicable laws, rules, regulations and industry and safety standards, and all policies and procedures of the Recipient from time to time, including but not limited to safety, health and environment policies, sexual and sex-based harassment policies and information sheets, approved codes of practice, and any site-specific policies and procedures;
2.5 all necessary permits and approvals are obtained to undertake all duties and obligations under these terms and conditions and the Order, including but not limited to a Job Safety Analysis/Safe Work Method Statement or equivalent in the manner required by the Work Health Safety Act 2012 (SA) prior to the commencement of works the subject of the Order;
2.6 unless an Order specifies otherwise, it supplies all Goods that are required to be supplied, irrespective of whether such Goods are to be supplied separately or in conjunction with the supply of Services, as well as all necessary equipment, materials and labour that are required for such supplies; and
2.7 Goods are delivered in the quantity, at the time and to the site or delivery point specified by the Recipient in the Order or in accordance with any instructions notified by the Recipient. The Contractor must ensure that Goods are protected against all damage and deterioration during transportation.
3. Title and Risk: Subject to clause 7 below, title to and risk in Goods passes to the Recipient when the Recipient has taken delivery of Goods at the site or delivery point specified or notified by the Recipient, and risk in works resulting from Services passes to the Recipient when the Recipient has inspected and has accepted such works.
4. Contractor's Personnel. The Contractor must ensure that Contractor’s Personnel engaged in the supply of Goods and/or Services are trained and competent, have appropriate qualifications and experience, and perform their duties with care, skill and diligence. If the Recipient gives reasonable notice to the Contractor that a member of the Contractor’s Personnel is unacceptable to the Recipient, the Contractor must take immediate steps to remove that person and provide an alternative person consistent with the requirements of these terms and conditions.
5. Contractor’s Equipment. The Contractor must ensure that all equipment (including personal protective equipment) used in providing the Services is properly maintained, fit for the purpose for which it is intended and complies with all relevant laws and South Australian industry and safety standards.
6. Reporting. The Contractor must keep accurate records relating to the provision of Goods and/or Services (as applicable) and it must make such records available for inspection or verification by the Recipient (including records required by to be kept by the Contractor pursuant to the Work Health and Safety Act 2012 (SA)) upon the reasonable request of the Recipient. The Contractor must report any safety incident or near miss to the Recipient promptly.
7. Inspection and acceptance of Goods and/or Services. The Recipient will not be deemed to have accepted any Goods or Services until it has had a reasonable time to inspect such Goods and/or works resulting from Services. If, on inspection, the Recipient finds that any Goods and/or works are defective in design, performance or workmanship or because they do not meet the Recipient’s specifications, the Recipient may reject those Goods and/or works. At the Recipient’s option and request, the Contractor must refund to the Recipient any payments made by the Recipient in respect of any defective Goods and/or Services that the Recipient rejects, or replace free of charge any defective Goods that the Recipient rejects, or rectify free of charge any defective works resulting from Services.
8. Invoicing and Payment: The Recipient will pay the Contractor for the supply of Goods and/or Services within 30 days of the end of the month in which the Recipient receives a tax invoice for Goods and/or Services, subject to the acceptance of supplied Goods and/or Services by the Recipient. The Contractor must not invoice Goods and/or Services until the Goods have been supplied to the Recipient, and the Services have been completed. All invoices must include the applicable Order number. The price payable for Goods and/or Services will be the price agreed in writing by the Recipient, which includes all costs, taxes and duties (including GST) and expenses incurred by the Contractor in complying with all of its obligations under these terms and conditions. The price will not vary except with the prior written approval of the Recipient. Acceptance of Goods and/or Services by the Recipient is not of itself acceptance or approval by the Recipient of any price variation if the Recipient has not approved the price variation in writing.
9. Single worker declaration. Where any work which is a necessary part of the Contractor’s business and which is performed to fulfil an Order has been performed solely by an individual (irrespective of whether that individual is the Contractor, if the Contractor is a sole trader; or is one of the partners of the Contractor, if the Contractor is a partnership; or if the individual is an employee or subcontractor of the Contractor), the Contractor must include a written declaration to that effect in the Contractor’s invoice in respect of that work.
10. Sub-contracting, assignment, novation. The Contractor may only sub-contract, assign or novate any part of the supply of Goods and/or Services with the Recipient’s consent, which will not be unreasonably withheld in the case of subcontracting arrangements.
11. Confidentiality. The Contractor must not, and must ensure that its Personnel do not, without the prior written approval of the Recipient, at any time use, disclose or give to any person any Confidential Information. This clause does not apply to Confidential Information that the Contractor proves is in the public domain other than as a result of a breach of this clause or is required to be disclosed by any applicable law or the listing rules of any applicable stock exchange.
12. Intellectual property. The Contractor assigns to the Recipient all Intellectual Property Rights that are created during the provision of Services, as soon as they are created. The Contractor agrees that it will not do anything which may infringe any Intellectual Property Rights of the Recipient, of a Group Entity or of any third party.
13. Registration with ReturnToWorkSA. To the extent required by law, the Contractor must register itself as an employer with ReturnToWorkSA. The Contractor must not permit any employee of the Contractor to undertake any work in connection with any Order if the Contractor is not registered as an employer with ReturnToWorkSA.
14. Insurance. The Contractor must, before commencing supply of Goods and/or Services, effect and maintain the following insurances: public and product liability insurance for at least $20 million per occurrence and unlimited in the aggregate, with an extension to cover contractors and subcontractors and noting the interest of the Recipient; workers compensation insurance as required by law; unlimited common law liability insurance for injury or death of the Contractor’s Personnel, noting the interest of the Recipient; and insurance for works, plant and equipment, and materials stored on site, for their market value and noting the interest of the Recipient. The Contractor must, without delay, provide certificates of currency or certificates of insurance for such insurances to the Recipient when the Recipient requests the Contractor to do so.
15. Indemnity. Without limiting the Recipient’s other rights and remedies, the Contractor indemnifies and will keep indemnified the Recipient, its agents and the Group Entities, and any employee of any of them, from and against any loss, damage, expense (including legal fees and expenses on a full indemnity basis) claim, demand or liability, made or incurred as a result of or in connection with:
15.1 the negligent act or omission of, or any breach of these terms and conditions or obligation under any Order by, the Contractor or its Personnel;
15.2 personal injury, death or property loss or damage suffered by any person arising out of the supply of Goods or Services by the Contractor, except to the extent such injury, death, loss or damage is caused by the Recipient, a Group Entity, the Recipient’s Personnel (excluding the Contractor), or a Group Entity’s Personnel (excluding the Contractor);
15.3 the Contractor’s failure to procure and maintain any required insurances (including registration with ReturnToWorkSA to the extent required by law);
15.4 any infringement or alleged infringement of Intellectual Property Rights relating to the Goods and/or Services to the extent caused by the Contractor or its Personnel; and
15.5 any failure by the Contractor to pay all applicable wages, benefits and entitlements to its Personnel in connection with the supply of Goods and/or Services.
The Recipient holds the benefit of this indemnity both in its own right and on trust for the indemnified parties described in this clause.
16. Termination. Either party may terminate its agreement with the other party for the supply of Goods and/or Services at any time by providing at least 30 days’ prior notice to the other party. Either party may terminate such agreement with immediate effect upon notice to the other party if any of the following events occurs: the other party has breached the agreement (where such breach is capable of remedy and is not a material breach) and fails to remedy that breach within 7 days of the first party’s notification of that breach; the other party commits a material breach of the agreement or a breach that is not capable of remedy; or the other party becomes, or is in danger of becoming, insolvent. Examples of material breaches include, but are not limited to: persistent failure to perform any obligation; gross negligence, wilful misconduct or unlawful conduct. Termination of the agreement does not affect the rights and obligations of the parties that accrued prior to termination (including without limitation rights to payment for work properly performed). Where the Recipient is the terminating party, it must pay the Contractor for Goods and/or Services properly provided, procured or undertaken in accordance with the agreement prior to the date the termination takes effect, less any loss or damage suffered by the Recipient because of a breach by the Contractor.
Notices. Any notice, approval, consent or other communication must be in writing and be sent by pre-paid post or by electronic transmission to the address or e-mail address notified by the party to whom the notice is addressed. Set off. The Recipient may deduct from any amounts due to the Contractor any amounts due from the Contractor to the Recipient. Governing law. The governing law of these terms and conditions is the law of South Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that state. Variation. A variation of any term of these terms and conditions must be in writing and signed by the parties. Severance. Any provision of, or the application of any provision of these terms and conditions which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. Entire agreement. These terms and conditions and the Order constitute the entire agreement between the parties for Goods and/or Services and supersede all previous written agreements in connection with Goods and/or Services. Inconsistencies. If there is any inconsistency between these terms and conditions and an Order, the Order will prevail to the extent of the inconsistency.
Associated Entity has the meaning given in the Corporations Act 2001 (Cth). Confidential Information means whether or not in material form, all information relating to the business dealings, contracts, customers, suppliers, computer operations, house designs and marketing, sales and business plans and financial data of the Recipient and any Group Entity. Contractor means the person from whom the Recipient has requested the supply of Goods and/or Services. Goods means goods to be provided by the Contractor to the Recipient as described in the Order. Group Entity means (as applicable) Construction Services Australia Pty Ltd (ABN 99 007 641 787) (CSA), Hickinbotham Holdings Pty Ltd (ABN 88 007 717 446), Alan Hickinbotham Pty Ltd (ABN 13 007 567 222), Building Technical Services Pty Ltd (ABN 55 007 648 400), Land Australia Corporation Limited (ABN 45 104 388 776), each Related Body Corporate of CSA, and each Associated Entity of CSA. Intellectual Property Rights means: patents, trade marks, service marks, rights in designs, trade names and copyright (including future copyright), in each case whether registered or not, and any applications for registration of any of them; rights under licences and consents in relation to any of them; and all forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world. Order means any request for Goods and/or Services (whether in electronic, written or other form) issued by the Recipient to the Contractor. Personnel means employees, contractors, officers and agents. Recipient means, in respect of an order, the Group Entity that issues the Order or, in the absence of an Order, otherwise accepts Goods and/or Services from the Contractor. Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth). Services means the services to be performed by the Contractor, as set out in the Order, and any services necessarily incidental to them.