In this agreement:
- Confidential Information means any documentation or information of a confidential nature supplied by either party to the other in connection with this agreement, but excludes information which has been previously published or otherwise disclosed to the general public or is required to be disclosed by law.
- Intellectual Property means all rights conferred by statute, common law or equity in relation to patents, inventions, registered and unregistered designs, registered and unregistered trade marks, trade names, logos and get up, confidential information, copyright and moral rights and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
- Purchase Order means the Purchase Order on the front page of these Terms and Conditions.
- Terms and Conditions means these Terms and Conditions.
- Expressions used in the Purchase Order have the same meaning in these Terms and Conditions.
In this document, unless the context otherwise requires:
- a reference to this agreement means the Purchase Order and the Terms and Conditions;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
- a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
- a provision is not construed against a party only because that party drafted it;
- an unenforceable provision or part of a provision may be severed, and the remainder of this agreement continues in force, unless this would materially change the intended effect of this agreement; and
- the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.
- applies to all Goods supplied by the Supplier to the Council and the Supplier is deemed to have read and agreed to this agreement prior to filling any order for the Goods; and
- prevails over the Supplier’s terms and conditions of sale or any other documents provided by the Supplier.
The Supplier agrees to supply the Goods and the Council agrees to purchase the Goods on the terms of this agreement.
- The Supplier must deliver the Goods on or before the Delivery Date.
- Unless otherwise specified in this agreement, “delivery” occurs as soon as the Goods are:
- off-loaded at the delivery address specified in the Purchase Order; and
- inspected by the Council and accepted as being in accordance with this agreement.
- Title to and property in the Goods passes to the Council on delivery of the Goods.
- Risk in the Goods passes on delivery of the Goods.
- No liability to pay for any Goods arises until delivery.
Unless otherwise specified in the Payment Terms, the Council must pay the price specified in the Purchase Order by cheque or electronic funds transfer within 30 days of the end of the month in which the invoice is issued by the Supplier. The invoice cannot be issued until after delivery of the Goods.
- The Supplier warrants that the Goods will:
- be of good merchantable quality and fit for their purpose;
- be new, unless otherwise notified in writing by the Supplier;
- conform with the description and the Specifications in the Purchase Order; and
- throughout the Warranty Period, operate in accordance with the Specifications, and otherwise in accordance with the operation of similar products.
- If any Goods are found to be defective or do not comply with clause 7.1.1 to 7.1.4 and the Council notifies the Supplier of the defect during the Warranty Period, the Supplier must, at its own cost, promptly replace the Products and deliver it to the Council.
- Failing rectification by the Supplier, the Council may rectify defects at the cost of the Supplier.
- The Supplier must maintain at all times the Supplier’s Insurances for at least the cover specified in the Purchase Order.
- The Supplier must maintain the Supplier’s Insurances for at least 12 months following delivery of the Products unless otherwise specified in the Purchase Order.
- The Supplier must provide certificates of currency in respect of the Supplier’s Insurances when reasonably requested by the Council.
- The Supplier must comply with the Work Health and Safety Act 2012 (SA), any regulations made under it and any associated policies adopted by the Council.
The Supplier must indemnify the Council against all actions, proceedings, claims, demands, charges, penalties, expenses and all other liabilities arising from or in relation to the performance or non‑performance of any of the Supplier’s obligations under this agreement.
- The Council may immediately terminate this agreement by giving notice to the Supplier if the Supplier:
- ceases to carry on business or becomes otherwise unable to perform its obligations under this agreement;
- breaches a material provision of this agreement and fails to remedy the breach within a specified reasonable time after receiving notice requiring it to do so;
- becomes an externally-administered body corporate or an insolvent under administration or becomes insolvent (each within the meaning of the Corporations Act 2001).
- Termination of this agreement under this clause does not affect any accrued rights or remedies of either party.
The Supplier must keep the Council fully and regularly informed as to all matters relating to the Goods and must provide to the Council any information reasonably requested by the Council for the purposes of monitoring the performance of the Supplier’s obligations under this agreement.
All disputes or differences between the Council and the Supplier must be referred to an arbitrator, agreed by the parties or in the absence of agreement appointed by the President of the Local Government Association of South Australia.
This agreement does not create a relationship of employment, agency or partnership between the parties.
14.1 Special conditions
If there is an inconsistency between a special condition set out in the Purchase Order and the rest of this agreement, the special condition governs to the extent of the inconsistency.
This agreement may be altered only in writing signed by each party.
The Supplier must not assign this agreement or any right under it without the prior written consent of the Council.
14.4 Entire agreement
- constitutes the entire agreement between the parties about its subject matter;
- supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
A waiver of a provision of or right under this agreement:
- must be in writing signed by the party giving the waiver;
- is effective only to the extent set out in the written waiver.
- The failure, delay, relaxation or indulgence by a party in exercising a power or right under this agreement is not a waiver of that power or right.
- An exercise of a power or right under this agreement does not preclude a further exercise of it or the exercise of another right or power.
14.6 Exercise of power
Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of this agreement, remains in force after the expiration or termination of this agreement.
14.8 Governing law
- This agreement is governed by the law in South Australia.
- The parties irrevocably submit to the exclusive jurisdiction of the courts in South Australia.
The Supplier acknowledges that the Ombudsman Act 1972 (SA) empowers the Ombudsman to investigate matters in the public interest. The Supplier must ensure compliance with all obligations arising under that Act and all other applicable laws.
The Supplier acknowledges and agrees that by entering into this agreement with the Council the Supplier will be considered to be a public officer for the purposes of the Independent Commissioner Against Corruption Act, 2012 (SA) (ICAC Act) and is obliged to comply with the ICAC Act and the Directions and Guidelines issued pursuant to the ICAC Act.
- The total amounts payable under this agreement are inclusive of GST, if applicable.
- Notwithstanding any other provision of this agreement, the Council need not make any payment for a taxable supply made by the Supplier under this agreement until the Supplier has given the Council a tax invoice in respect of that taxable supply.