Conditions of Purchase
1. Interpretation
1.1 In these Conditions of Purchase:
- “Buyer” means Treloar Trading Pty Limited (ABN 70 615 093 457);
- “Business Day” means a day other than a Saturday, Sunday or public holiday in New South Wales;
- “Contract” means the contract formed between the Buyer and the Contractor in accordance with clause 2;
- “Contractor” means the supplier of Goods or Services named in the Order;
- “Goods” and “Services” have the meanings given in the Order;
- “GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- “Order” means a Purchase Order issued by the Buyer; and
- “PPSA” means the Personal Property Securities Act 2009 (Cth).
1.2 Singular includes plural and vice versa. References to legislation include amendments to and replacements of that legislation. Headings are for convenience only and do not affect interpretation.
2. Formation and Order of Precedence
2.1 A Contract is formed when the Contractor accepts the Order in writing or commences performance, whichever first occurs.
2.2 The Contract consists of the Order, any special conditions issued by the Buyer, these Conditions of Purchase, the drawings and specifications referenced in the Order, and any other documents referenced in the Order.
2.3 In the event of inconsistency between those documents, the order of precedence is: (a) the Order; (b) any special conditions issued by the Buyer; (c) these Conditions of Purchase; (d) drawings and specifications; and (e) other referenced documents.
2.4 Any additional or different terms in the Contractor’s quotation, acknowledgement, invoice or other document are excluded and have no effect, even if signed or accepted by the Buyer, unless expressly accepted in writing by an authorised officer of the Buyer.
3. Conformance and Rejection
3.1 Goods and Services must be supplied strictly in accordance with the Order, the drawings, the specifications and all current applicable Australian Standards, codes and statutory requirements.
3.2 The Buyer may reject any Goods or Services that are defective, of inferior quality, unsuitable for their intended purpose or not in accordance with the Order, by written notice given within thirty (30) days of receipt (or, in the case of latent defects, within thirty (30) days of the defect becoming reasonably apparent).
3.3 Rejected Goods are at the Contractor’s cost and risk. The Contractor must, at the Buyer’s option, replace, repair, refund or credit the rejected Goods, reimburse all costs reasonably incurred by the Buyer in rectifying or returning them, and compensate the Buyer for any direct loss caused by the rejection.
4. Warranties
4.1 The Contractor warrants that the Goods and Services will:
- conform to the Order, drawings and specifications;
- be of merchantable quality and fit for the purpose disclosed by the Buyer;
- be new, free of defects in materials and workmanship;
- be free of encumbrances, security interests and third-party claims;
- not infringe any third-party intellectual property rights; and
- comply with all current applicable Australian Standards and laws.
4.2 These warranties continue for the longer of (a) twelve (12) months from acceptance by the Buyer, and (b) any longer period required by law or specified in the Order.
5. Quality System
5.1 The Contractor must operate a quality management system that meets the current edition of AS/NZS ISO 9001 (or any equivalent or successor standard nominated by the Buyer in the Order) appropriate to the type of Goods or Services supplied, and must on request provide evidence of certification or compliance.
6. Documentation
6.1 Material certificates, test certificates, operating and maintenance manuals, safety data sheets, certificates of conformance and any other documents required by the Order or by law are deliverable items. The Order is not complete, and payment is not due, until all required documents have been delivered to the Buyer in legible electronic form.
7. Delivery, Risk and Title
7.1 Goods are at the Contractor’s risk until accepted by the Buyer at the delivery point nominated in the Order. Risk in the Goods passes to the Buyer on acceptance; title passes to the Buyer on the earlier of acceptance or payment.
7.2 Unless otherwise agreed in writing, all Goods are quoted Delivered Duty Paid to the Buyer’s nominated address (free into store).
7.3 Time is of the essence. The Contractor must deliver on the date(s) specified in the Order and must immediately notify the Buyer in writing of any actual or anticipated delay. The Buyer may, without limiting any other right, reject all or part of any Goods or Services not delivered on time, cancel the unfilled balance of the Order, and recover from the Contractor all losses, costs and expenses suffered by reason of the delay (including the cost of obtaining substitute Goods or Services). Where stated in the Order, liquidated damages apply at the rate specified.
7.4 On request, the Contractor must supply the Buyer with a detailed manufacturing program. The Contractor must give the Buyer prior notice of completion of the Order to enable inspection and transport to be arranged.
8. Price and Payment
8.1 Prices and quantities stated in the Order are firm and exclusive of GST. The Buyer will pay GST in addition on receipt of a valid tax invoice.
8.2 Packaging, freight, insurance, duties and all other charges are included in the price unless expressly stated otherwise in the Order. No additional Goods, Services, work or charges will be accepted unless authorised in writing by the Buyer in advance.
8.3 Payment is due thirty (30) days from the end of the month in which a correctly rendered tax invoice is received and the Goods or Services have been satisfactorily received, whichever is the latter, unless otherwise agreed by the Buyer in writing.
8.4 The Buyer may set off any amount due from the Contractor to the Buyer (whether under this Contract or otherwise) against any amount the Buyer owes the Contractor. The Buyer may withhold payment in respect of any Goods or Services that are subject to a bona fide dispute or rejection until the matter is resolved.
9. Free-Issue Material, Tooling and Equipment
9.1 Materials, jigs, patterns, tools, gauges, drawings and equipment supplied by the Buyer remain the Buyer’s property at all times. The Contractor:
- holds them as bailee for the Buyer;
- must keep them separately identifiable, in good condition and properly insured for their full replacement value;
- must use them only for the Buyer’s Order;
- must inspect them on receipt and notify the Buyer of any defects within five (5) Business Days;
- must replace, at its own cost, any items lost, damaged or destroyed while in its possession; and
- must return all such items, together with any surplus material, on completion of the Order or earlier on request.
9.2 The Buyer’s interest in those items constitutes a Security Interest under the PPSA and the Contractor must do all things necessary to enable the Buyer to register and perfect that interest.
10. Material, Process and Workmanship
10.1 Castings must be first quality, clean, free of porosity and other defects, properly dressed and fettled, and must accommodate the dimensions on the drawings. Chaplets and fillings are not permitted without the Buyer’s written authorisation.
10.2 Heat treatment and stress relieving must be carried out strictly in accordance with the Order or drawings. The Contractor must supply a heat treatment certificate or stress relieving chart with the returned Goods.
10.3 Workmanship must be first-class throughout and is subject to inspection by the Buyer at any time. Inspection by the Buyer does not relieve the Contractor of responsibility for the correctness of the finished Goods.
11. Drawings and Confidentiality
11.1 All drawings, specifications and other information provided by the Buyer to the Contractor are confidential and remain the property of the Buyer. The Contractor must use them only for the purpose of performing the Order, must not copy or disclose them to any third party without the Buyer’s prior written consent, and must return or destroy them on completion or termination of the Order.
11.2 Drawings must not be scaled and the Contractor must not depart from them without the Buyer’s written permission. Any discrepancy in drawing dimensions or points requiring interpretation must be referred to the Buyer before proceeding with the work.
11.3 This obligation survives termination.
12. Intellectual Property
12.1 Intellectual property in any drawings, specifications or other materials supplied by the Buyer remains the Buyer’s property. Intellectual property created by the Contractor specifically for the Buyer’s Order vests in the Buyer on creation; the Contractor must do all things reasonably required to perfect that vesting.
12.2 The Contractor warrants that the Goods and Services do not infringe any third-party intellectual property right and indemnifies the Buyer against any loss arising from any actual or alleged infringement.
13. Indemnity
13.1 The Contractor indemnifies the Buyer and its officers, employees and agents against all loss, damage, claims, actions, costs and expenses (including legal costs on a solicitor-and-own-client basis) arising directly or indirectly from:
- any breach of this Contract by the Contractor;
- any defect in the Goods or Services;
- any negligent or wrongful act or omission of the Contractor or its personnel;
- any actual or alleged infringement by the Goods or Services of any third-party intellectual property right;
- personal injury, death or property damage caused or contributed to by the Contractor or its personnel; or
- the Contractor’s breach of any law.
14. Insurance
14.1 The Contractor must effect and maintain at its own cost, with reputable insurers:
- public and product liability insurance of at least $20 million per occurrence;
- workers’ compensation insurance as required by law;
- where Services are performed at the Buyer’s premises, motor vehicle and (where relevant) professional indemnity insurance to industry-standard limits; and
- such other insurances as the Buyer may reasonably require.
14.2 Certificates of currency must be provided on request and at least annually.
15. Work Health and Safety
15.1 The Contractor and its personnel must comply with the Work Health and Safety Act 2011 (NSW), all related regulations and codes of practice, and all reasonable site rules of the Buyer.
15.2 The Contractor must ensure that personnel attending the Buyer’s premises hold all required licences, qualifications and inductions, and must notify the Buyer immediately of any incident, injury or near-miss.
16. Modern Slavery
16.1 The Contractor warrants that it complies with the Modern Slavery Act 2018 (Cth), takes reasonable steps to identify and address modern slavery risks in its operations and supply chains, and will provide such information as the Buyer reasonably requires for the Buyer’s own modern slavery compliance and reporting.
17. Anti-Bribery and Sanctions
17.1 The Contractor warrants that it will comply with the Criminal Code Act 1995 (Cth) (foreign and domestic bribery offences), all other anti-corruption laws, and all applicable trade-sanctions regimes. The Contractor must not offer or accept any improper benefit in connection with this Contract.
18. Termination
18.1 The Buyer may terminate this Contract:
- for the Contractor’s breach, by written notice, if the Contractor fails to remedy a material breach within fourteen (14) days of written notice (or immediately if the breach is incapable of remedy);
- for the Contractor’s insolvency, immediately on written notice; or
- for convenience, on thirty (30) days’ written notice, in which case the Buyer will pay the Contractor for Goods and Services accepted before termination and the Contractor’s reasonable, substantiated, non-recoverable committed costs (excluding loss of profit on the unperformed balance).
19. Force Majeure
19.1 Neither party is liable for any failure or delay in performance (other than payment) caused by an event beyond its reasonable control, provided it gives prompt written notice and uses reasonable endeavours to mitigate. If the event continues for more than thirty (30) days, the Buyer may terminate the affected portion of the Order without liability.
20. Assignment and Sub-Contracting
20.1 The Contractor may not assign, novate or sub-contract any of its obligations without the Buyer’s prior written consent. The Buyer may assign or novate this Contract to a related body corporate or to a purchaser of the relevant business.
21. Notices
21.1 Notices must be in writing, addressed to the recipient at the address or email last notified, and are deemed received on hand delivery, the next Business Day after posting by pre-paid mail in Australia, or on successful electronic transmission (provided no failure or bounce notice is received within four hours).
22. Privacy
22.1 Each party must comply with the Privacy Act 1988 (Cth) in relation to any personal information disclosed under this Contract.
23. Dispute Resolution
23.1 A party must not commence Court proceedings (other than for urgent interlocutory or equitable relief) unless it has first given written notice of the dispute and senior representatives of each party have met in good faith to attempt resolution.
23.2 If the dispute is not resolved within twenty (20) Business Days, the parties must refer it to mediation administered by the Resolution Institute (Sydney) under its Mediation Rules.
23.3 If still unresolved within thirty (30) Business Days of referral, either party may commence proceedings in a Court in New South Wales.
24. General
24.1 Governing Law: this Contract is governed by the laws in force in New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
24.2 Entire Agreement: this Contract is the entire agreement between the parties on its subject matter and supersedes all prior negotiations, representations and agreements.
24.3 Variation: no variation is effective unless in writing and signed by an authorised representative of the Buyer.
24.4 Waiver: a failure or delay by a party to exercise a right is not a waiver.
24.5 Severance: if any provision is invalid or unenforceable, it is severed and the remainder continues in force.
24.6 Survival: clauses by their nature intended to survive (including warranties, indemnities, confidentiality, IP and disputes) survive termination.
24.7 Counterparts: this Contract may be executed in counterparts, including by electronic signature in accordance with the Electronic Transactions Act 2000 (NSW).