Purchase Order – Terms of trade

PARTIES

The Customer identified in the Purchase Order (Customer)

AND

The Supplier identified in the Purchase Order (Supplier).

• Background

1. The Customer is operates a real estate business, and intends to acquire the Goods and/or Services from the Supplier.
2. The Supplier has the skills, background and experience in the supply of the Goods and/or Services required by the Purchase Order.
3. The Customer wishes to engage an independent contractor to provide the Goods and or Services to the Customer.
4. The Supplier is willing to provide the Services and the Customer is willing to appoint the Supplier to provide the Services, pursuant to the Purchase Order which is subject to the provisions of this agreement.
5. The Supplier and the Customer wish to document the terms of their arrangement for the sale of the Goods and/or Services.

• Definitions and interpretation
  • Definitions

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.

Confidential Information includes any information marked as confidential and any information received or developed by the Supplier during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Company in the course of the Company’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

Customer means the Customer identified on the Purchase Order and includes the Customer’s agents and permitted assigns.

Customer Intellectual Property means all Intellectual Property Rights owned by the Customer.

Goods means any goods supplied by the Supplier including those supplied in the course of providing Services.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.

Loss includes, but is not limited to, costs (including legal costs on a solicitor client basis), expenses, lost profits, award of damages, claims for product liability, personal injury and property damage.

Purchase Order or Order means an order for Goods and/or Services placed by a Customer subject to these terms of trade.

Services means the services to be provided by the Supplier to the Customer in accordance with an Order and these terms of trade.

Supplier means the entity identified as the Supplier in the Purchase Order, the Supplier’s agents and permitted assigns.

Supply Requirements and Standards means all specifications and standards that the Supplier must meet in order to deliver the Goods and Services, identified in schedule 3.

Supplier Intellectual Property means all Intellectual Property Rights owned or licensed by the Supplier in any way connected to the Goods and/or Services.

• Interpretation

In these terms of trade, unless the context otherwise requires:

• a reference to writing includes email and other communication;
• the singular includes the plural and vice versa;
• a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
• a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
• where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
• headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
• if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
  • if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
  • in all other cases, must be done on the next Business Day.
• General
  • These terms of trade apply to all transactions the subject of a Purchase Order between the Customer and the Supplier relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Supplier or elsewhere, unless agreed in writing to the contrary.
  • These terms are taken to be accepted by the Supplier in relation to each Purchase Order upon the Supplier accepting any Purchase Order.
  • These terms of trade may be varied by the Customer from time to time by the Customer giving the Supplier 30 days’ written notice (in which case these terms will be varied in accordance with the terms of that notice at the expiry of the notice period).
• Pricing
  • The Goods and Services will be supplied in accordance with the pricing identified on a Purchase Order except where otherwise agreed in writing by the Customer.
  • The Supplier may not (without express written from the Customer):
    • Add or remove Goods and Services from those that are available to the Customer; or
    • Vary the requirements of a Purchase Order in relation to any Goods or Service.
  • Unless otherwise expressly agreed in writing, the prices contained in the Purchase Order include transport and delivery of the Goods. The Supplier permits the Customer to make their own arrangements for the collection of Goods directly from the Supplier, and the Supplier shall in no way impede such arrangements.
• Orders
  • Every Purchase Order by the Customer for the provision of Goods or Services must be submitted in writing on the Customer’s standard Purchase Order form (unless otherwise agreed). Such Purchase Order form may be electronic or in hard copy at the Customer’s sole discretion.
  • A Purchase Order will only be deemed to be placed by the Customer if the Purchase Order clearly identifies the Goods or Services ordered and the Purchase Order is sent to the Supplier.
  • Purchase Orders must be signed or submitted by an authorised representative of the Customer and must specify the required date of delivery.
  • Any Purchase Order that is placed shall be subject to these terms of trade.
  • The Supplier may only refuse to provide Goods or Services where goods are not able to be sourced because of matters beyond the reasonable control of the Supplier, and for no other reason.
  • A Purchase Order cannot be cancelled without the prior written consent of the Customer. Where a Purchase Order is cancelled or refused by the Supplier for any reason other than allowed by this agreement, the Supplier indemnifies the Customer against any Losses incurred by the Customer as a result of the cancellation or refusal. This includes, but is not limited to, loss of profit in connection with the Purchase Order.
  • Time is of the essence in relation to all Purchase Orders. A failure to deliver in accordance with requirements in Purchase Orders to the Customer in time will be deemed, if determined by the Customer in its sole discretion, a cancellation of the Order (which may only be waived by the Customer, in its sole discretion) and the remaining provisions of these terms of trade shall apply.
  • The Customer it not obliged to continue placing Purchase Orders with the Supplier. The Customer may in its sole discretion and without recourse against the Customer cease placing Purchase Orders with the Supplier at any time, for any reason (without the need to provide any reason), including removing the Supplier as a supplier to the Customer from its database.
• Product and delivery requirements
  • All deliveries by the Supplier of any Goods and Services must be to the delivery address specified by the customer in each Purchase Order.
  • All Goods and Services delivered to the Customer by the Supplier pursuant to all Purchase Orders must:
    • Be delivered prior to the time required by the Purchase Order, with time being of the essence;
    • Contain two copies of a packing slip that enables confirmation of the completion of delivery by the Customer (upon delivery occurring), with one copy to be retained by the Supplier and one copy to be retained by the Customer on delivery (Packing Slip);
    • Comply with all specifications identified by the Customer with each Purchase Order (or where not specified, in accordance with specifications previously identified for the same Goods or Services that are ordered again);
    • Be strictly in accordance with the Supply Requirements and Standards unless otherwise agreed or requested in writing by the Supplier (in which case in accordance with that agreement or request);
    • Comply with all government or other authority requirements (including the requirements of any authority that is non-governmental but where those requirements apply to any Purchase Order) in force from time to time; and
    • Comply with all other legal obligations in force from time to time.
  • In the event that any Goods or Services delivered do not comply with clauses 6(a) or (b) in any respect, without limiting the Customer’s rights at law:
    • The Customer has the right to reject any delivery of Goods or Services without any recourse against the Customer (in which case the Customer shall not be required to make any payment for any Goods or Services the subject of that Purchase Order that are rejected;
    • The Supplier will indemnify the Customer against any and all Loss in connection with or arising out of such non-compliance;
    • The Supplier must refund to the Customer within 48 hours all moneys paid by the Customer pursuant to the relevant Purchase Order;
    • The Supplier must pick up at its cost any rejected Goods or Services within 12 hours of delivery to the Customer; and
    • In the event that the Customer requires the Goods or Services to be replaced, must within 12 hours provide a revised delivery date to the Customer that is no less favourable to the customer than what is otherwise required by these terms.
  • Where a Packing Slip is not signed on behalf of the Customer, the Goods and Services shall be deemed to have not been delivered to the Customer. The Supplier acknowledges that a signed Packing Slip (by the Customer) shall be the only proof of delivery of Goods or Services required by each Purchase Order.
• Variations

The Customer may request that its Purchase Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect. The Supplier may not unreasonably refuse to vary an Order.

• Invoicing and payment
  • The Supplier may only invoice the Customer upon completion of the supply of the Goods or Services or any time thereafter in accordance with these terms, for an amount equal to the Order or the balance of the Purchase Order outstanding, subject to the Purchase Order identifying any requirement to the contrary;
  • The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
    • the amount for the Goods or Services (or both) as set out in the Order and any Additional Charges, or
    • the amount otherwise payable for the Goods and Services.
  • Subject to (d) below, the Customer agrees to pay the Supplier’s invoices issued in accordance with these terms identified in the Purchase Order.
  • The Customer may dispute any invoice by setting out its reasons in writing. In the event of a dispute:
    • The Customer will pay any undisputed portion of the invoice in the time required by that invoice (where issued in accordance with these terms of trade); and
    • The parties agree to negotiate in good faith in respect of any disputed portion or, where they are unable to agree within 28 days of the dispute notice issued in accordance with this clause, to refer the matter to mediation; and
    • The Customer will reserve all of its rights in relation to the subject invoice, Goods and Services (which shall remain reserved even where there is no dispute).
  • If any invoice is due but unpaid (including any disputed portion), the Supplier may not withhold the provision of any further Goods or Services until overdue amounts are paid in full.
  • The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
• Sale of Goods by Customer
  • The Supplier acknowledges that the Customer may sell the Goods supplied by the Supplier using its own distribution channels.
  • The Supplier agrees to the sale by the Customer of the Goods supplied to the Customer under these terms of trade (to customers of the Customer) on terms determined by the Customer in its sole discretion, without the need to act reasonably.
  • In the event that any customer of the Customer opens a Good and discovers any fault with such Good (including without limitation any damage, incorrect Goods supplied, any form of misrepresentation about the specifications of the Goods, the Goods have not been properly or sufficiently packed, or standards below that reasonable expected in relation to the Good), the Supplier must:
    • Indemnify the Customer against any Losses (including without limitation any shipping fees and any amounts required for any refund payments required) it suffers as a result;
    • Provide a full credit or refund (at the Customer’s election) to the Customer for the costs of those Goods or Services pursuant to the applicable Order.
  • In the event that any Goods or Services are the subject of a recall, the Supplier will indemnify the Customer and hold it harmless against all Losses suffered by the Customer in connection with or arising out of such recall.
  • Notwithstanding any other clause of this agreement, the Supplier agrees to indemnify and hold harmless the Customer against all Losses, and in relation to all claims whatsoever, in connection with the supply of all Goods and Services pursuant to these terms of trade. The Supplier must pay on demand to the Customer the amount equivalent to all Losses, without set off.
  • The Supplier must take out:
    • insurance required by law, including worker’s compensation insurance as prescribed by law for the Supplier’s personnel;
    • transit and all other insurance in relation to the Goods produced, and the delivery of those Goods to the Customer;
    • public liability insurance for a minimum of an amount of $20 million for each occurrence; and
    • product liability insurance in relation to all Goods supplied by the Supplier.
  • Title and risk
    • Risk in Goods passes to the upon acceptance of the Goods by the Customer at the place of delivery.
    • Property and title in Goods supplied to the Customer under these terms of trade passes immediately upon acceptance of the Goods by the Customer.
  • Intellectual Property Rights and use of Supplier Intellectual Property
    • The Supplier acknowledges that all Intellectual Property Rights in relation to the designs, specifications or Supply Requirements and Standards in respect of the Goods are owned by the Customer and, where otherwise owned by the Supplier, must be assigned to the Customer immediately upon coming into existence (in which case the Supplier must do all acts and things to enable this to occur).
    • The Supplier acknowledges that it shall have no Intellectual Property Rights in the Goods or Services, or any rights in relation to the Customer Intellectual Property.
    • Unless specifically agreed in writing between the Supplier and the Customer, all Intellectual Property Rights in any works, Goods or Services created by the Supplier pursuant to these terms vest in and remain the property of the Customer. The Supplier must disclose to the Customer promptly and fully all discoveries, improvements and inventions made or conceived by the Supplier (either solely or jointly with others) in the course of performing the Services which are similar to the actual or anticipated business, work or investigations of the Customer or which result from or are suggested by any work performed for the Customer. Such inventions, whether or not they contain Intellectual Property Rights capable of protection, shall be and remain the sole and exclusive property of the Customer or its nominees.
    • The Supplier acknowledges that the Customer owns all Intellectual Property created by the Supplier in connection with the Goods and/or Services, that now exists or that later comes into existence. The Supplier assigns all its rights in such Intellectual Property to the Customer. The Supplier will do all things and execute all documents necessary to secure the Customer’s ownership of the Intellectual Property.
    • The Supplier irrevocably licenses the Customer to use all Intellectual Property Rights in connection with all Goods and Services supplied under these terms of trade in connection with the sale of those Goods and/or Services by the Customer in any way, to the extent those rights are owned by the Supplier.
    • The Supplier indemnifies and agrees to keep indemnified the Customer against all Losses incurred by the Customer in relation to or in any way directly or indirectly connected with any infringement of any Intellectual Property Rights or breach of any warranty given in these terms of trade in relation to any material supplied by the Supplier.
    • The Supplier acknowledges that the Customer owns all Customer Intellectual Property and any other Intellectual Property Rights in connection its business, and the Supplier has no license or right to use those Intellectual Property Rights without the express written authority of the Customer.
    • The Supplier shall have no moral rights in relation to the Goods or Services. The Supplier expressly acknowledges that it shall have no right of attribution and will not be permitted under any circumstances to
      • use or insert its name or branding in any way on the Goods (or otherwise any other goods or services supplied as part of the Services);
      • in any way publish any material (whether online including social media platforms, forums or any other publicly available communication medium, or otherwise) that relates to the Goods or Services, or the Customer Intellectual Property, without the express written consent of the Customer.
    • Clause (h) shall extend to all employees, contractors and suppliers to the Supplier, and the Supplier must obtain all necessary moral rights waivers from those persons.
  • Agency and assignment
    • The Supplier may not at any time, without the Customer’s consent in writing, appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
    • The Customer has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Customer owed to the Supplier under these terms of trade.
    • The Supplier is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Customer.
  • Default
    • Each of the following occurrences constitutes an event of default:
      • The Supplier breaches or is alleged to have breached these terms of trade for any reason and fails to remedy that breach within 3 days of being given notice to do so;
      • The Supplier does not strictly comply with clause 6;
      • The Supplier, being a natural person, commits an act of bankruptcy;
      • The Supplier, being a corporation, is subject to:
        • a petition being presented, an order being made or a meeting being called to consider a resolution for that party to be wound up, deregistered or dissolved;
        • a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of that party’s property and undertaking;
        • the entering of a scheme of arrangement (other than for the purpose of restructuring); and
        • any assignment for the benefit of creditors;
      • The Supplier purports to assign its rights under these terms of trade without the other party’s prior written consent; or
      • The Supplier ceases or threatens to cease conduct of its business in the normal manner.
    • Where an event of default occurs, the Customer may (without limiting its rights):
      • terminate these terms of trade; and
      • terminate any or all unsatisfied Purchase Orders (if any).
    • Termination

In addition to the express rights of termination provided in these terms of trade, the Customer may terminate these terms of trade by giving 14 days written notice to the Supplier at any time (for convenience).

• Confidentiality
  • The provisions of these terms of trade are confidential and must not be disclosed by the Supplier except:
    • Where required by law or any order of a court of competent jurisdiction;
    • For the purpose of seeking legal, accounting or financial advice; or
    • Where the Customer consents in writing to the disclosure.
  • The Supplier must keep the Customer’s, and any Related Body Corporate of the Customer’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
  • The Customer and the Supplier acknowledge that information resulting from the activities of the Supplier pursuant to this agreement will also be regarded as Confidential Information. The Supplier agrees that the Supplier’s obligations in paragraph 15(b) extend to this category of information.
  • The Supplier’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
    • the Customer in the case of Confidential Information pertaining to the Customer’s business; and
    • the Customer’s relevant client, in the case of Confidential Information pertaining to the business of any of the Customer’s clients.
  • At the termination of this agreement, or when earlier directed by the Customer:
    • all Confidential Information must be returned to the Customer, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Supplier makes and any software that the Supplier creates based on the Confidential Information; and
    • the Supplier must erase and destroy any copies of any software containing or comprising the Confidential Information in the Supplier’s possession or under the Supplier’s control or that may have been loaded onto a computer possessed or controlled by the Supplier.
  • The Confidential Information does not include information which:
    • is generally available in the public domain otherwise than as a result of a breach of paragraph 15(b) by the Supplier; or
    • was known by the Supplier prior to the Customer disclosing the information to the Supplier.
  • The Supplier agrees that the Customer may require any of the Supplier’s Personnel to sign a confidentiality agreement in a form that the Customer approves, as a condition of the Customer’s acceptance of any of the Supplier’s Personnel.
  • The Supplier agrees to indemnify the Customer fully against all liabilities, costs and expenses which the Customer may incur as a result of any breach of this clause by the Supplier.
  • The Supplier acknowledges that damages may be an inadequate remedy for breach of this clause and that the Customer may obtain injunctive relief against the Supplier for any breach of this clause.
  • The obligations accepted by the Supplier under this clause 9 survive termination or expiry of this agreement.
• Exclusions and limitation of liability
  • The Customer gives no warranty in relation to volume or frequency of Orders.
  • Under no circumstances is the Customer liable or responsible in any way to the Supplier or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
    • any Goods or Services supplied to the Customer;
    • any delay in supply of the Goods or Services; or
    • any failure to supply the Goods or Services.
  • The Customer is not liable for any representation made by, or act or omission of the Customer in respect of the on-sale by the Customer of the Goods or Services.
  • To the fullest extent permissible at law, the Customer is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
• Indemnity
  • To the fullest extent permitted by law, the Supplier indemnifies and keeps indemnified the Customer, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Supplier) against the Customer or, for which the Customer is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade.
  • This includes, but is not limited to, any legal costs incurred by the Customer in relation to meeting any claim or demand or any party/party legal casts for which the Customer is liable in connection with any such claim or demand.
  • This provision remains in force after the termination of these terms of trade.
• Dispute resolution
  • If a dispute arises between the Customer and the Supplier, the following procedure applies:
    • A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
    • A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
    • A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
  • If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
  • Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Resolution Institute before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the Resolution Institute rules which operate at the time the matter is referred to that body. The rules set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the rules are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
  • Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
  • The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
• Miscellaneous
  • These terms of trade are governed by the laws of the state or country where the Customer’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
  • These terms of trade and any Orders and written variations agreed to in writing by the Customer and the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
  • These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
  • In entering into these terms of trade, the Supplier has not relied on any warranty, representation or statement, whether oral or written, made by the Customer or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
  • If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
  • A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
  • A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on an Order (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Order; sent by fax to the fax number of the addressee specified in the relevant Order, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Order with acknowledgement of delivery.
  • A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
  • A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.