Terms & Conditions of Purchase
“Buyer” means McMahon Services Australia Pty Ltd or a related entity.
“Goods” means the products or services specified in the Order.
“Order” means the purchase order overleaf and incorporates these terms and conditions and all documents or specifications referred to or attached to it.
“Seller” means the seller or provider of the Goods specified in the Order.
“Head Contract” means an agreement between the Buyer and another party for the performance of work which the supply of the Goods forms part.
2. Basis of Purchase
2.1 Acceptance of an Order by the Seller includes these Terms and Conditions to the exclusion of any conditions on any documentation of the Seller.
2.2 Any Order must be signed by an authorised representative of the Buyer, supersedes any previous negotiations and constitutes an offer to purchase the Goods on the terms specified in the Order not an acceptance of any offer by the Seller to sell the Goods.
2.3 Unless and until accepted by the Seller, the Order will lapse after a period of 1 month.
2.4 The Buyer will not accept delivery of or make payment for Goods unless supplied by the Seller pursuant to an Order and the Order number is specified on the Supplier’s invoice or delivery form.
3.1 The Order is placed on a firm price as specified in the Order and is not subject to increase unless agreed to in writing by the Buyer.
3.2 Any price is inclusive of packaging, insurance and delivery costs. Unless otherwise indicated the prices stated on the order shall be inclusive of GST. Payment is conditional on the Seller providing a tax invoice to the Buyer.
3.3 The Buyer will make payment for the Goods within 45 days of the end of the month of (unless issued under the Building and Construction Industry (Security of Payment) Act 2021 in Western Australia, in which case payment for the Goods will be within 42 days of the end of the month) (the later of) the receipt of the goods or a tax invoice for the Goods, less any reduction for part supply or part acceptance, any discount or rebate provided by the Seller or any right of set-off for breach of warranty.
4.1 The Seller will deliver the Goods during normal business hours on or prior to the date and at the address specified in the Order with receipt to be acknowledged by an authorised representative of the Buyer.
4.2 Acceptance of the Goods is not to be deemed until the Buyer has had a reasonable time to inspect and the Buyer is entitled to reject the Goods if any defect is detected or the Goods are delivered in error or in excess of the quantity ordered.
4.3 Risk and property in the Goods and any packaging shall pass to the Buyer on delivery unless the Buyer notifies the Seller of its rejection of the Goods. The Seller will maintain insurance on the Goods until acceptance by the Buyer.
4.4 On rejection of any Goods the Buyer may return the Goods to the Seller at the Seller’s expense.
5. Delay and Termination
5.1 The Seller must give written notice to the Buyer of any delay in delivery beyond the control of the Seller detailing the cause of the delay and time when the Seller can make delivery.
5.2 The Buyer may grant the Seller a reasonable extension of time provided that the Buyer may at any time terminate the Order if the Buyer is relying on the delivery of the Goods and is able to source the Goods elsewhere.
5.3 The Seller will comply with any written instructions, issued by the Buyer at any time prior to delivery of the Goods, to delete, add, alter or otherwise vary the Order.
5.4 The Buyer may at any time and for any reason terminate the Order for all or any part of the undelivered portion of the Goods. The Buyer will have no liability to the Seller arising from any termination of this Order except to make payment for Goods actually delivered or in transit prior to such termination.
6. Specifications and Warranty
6.1 The Seller warrants that the Goods shall:
(a) conform to any specification, description or reference to sample in the Order or as otherwise notified to the Seller or comprised in the Seller’s catalogue, price list or advertising matter;
(b) comply with all applicable legislation, regulations, codes of practice or other legal requirements including but not limited to Occupational Health Safety & Welfare and Environment Protection;
(c) be fit for the purpose of such Goods commonly supplied or any other purpose made known by the Buyer;
(d) be of merchantable quality and free from any defect in materials or workmanship;
(e) carry all manufacturer’s warranties; and
(f) not infringe any intellectual property rights of a third party.
6.2 In addition to the above warranties, all Goods supplied by the Seller are covered by:
(a) a warranty for materials and workmanship for a period of 24 months; and
(b) in respect of any proprietary items, a design warranty for a period of 60 months from the date of delivery of the end product produced by the Buyer in which the Goods are incorporated.
6.3 Any defective Goods must be re-supplied or repaired, at the Buyer’s discretion, and at the Seller’s expense.
6.4 The Seller indemnifies the Buyer and its officers, employees and agents and other users of the Goods from and against all liability, loss, damages, costs, expenses, fines, penalties or other obligations whatsoever including but not limited to damage or destruction of property and injury or death of any person arising from or connected with the Goods whether or not caused wholly or in part by any act or omission, default or negligence or wilful act of or in respect of any breach of warranty or of a term or condition of any Order by the Seller, its officers, employees, agents or contractors.
7. Excess Goods
If the Buyer determines that any Goods are no longer required for any reason, are excess to the Buyers requirements or the Buyer is overstocked with Goods supplied by the Seller on a regular basis then the Buyer may return such excess Goods to the Seller and the Seller will credit the Buyer’s account the invoiced cost of such Goods, provided that:
(a) the Buyer pays the cost of return freight;
(b) the Goods are unmarked and returned in original packaging; and
(c) the Seller has a reasonable prospect of selling the Goods.
8.1 Any waiver by the Buyer of a breach of these terms and conditions or of any Order either in whole or in part must be in writing and does not constitute a waiver of any subsequent breach and any such waiver is without prejudice to the Buyers other rights arising from such breach.
8.2 Any variation or modifications of an Order shall not apply unless agreed to in writing by the Buyer.
8.3 Reference to the Buyer and the Seller shall extend to their respective successors, administrators and permitted assigns.
8.4 All notices shall be delivered in writing by delivering or posting to the address of the Buyer and Seller as specified in the Order or by facsimile transmission to the facsimile number of the Buyer and Seller.
8.5 The Order and these Terms and Conditions shall be construed in accordance with the laws of South Australia and the Buyer and Seller submit to the exclusive jurisdiction of the courts of South Australia at Adelaide.
9. DIT GC21 Head Contract
9.1 Where under the Head Contract:
9.1.1 the principal under the Head Contract is the Commissioner of Highways (and including where the Commissioner of Highways is described differently such as, without limitation, “DIT”, “Department for Transport and Infrastructure” or such other name as is used for that department of the South Australia Government (including any new names given to that department by the South Australian Government) (“Principal”); and
9.1.2 the form of contract entered into between the Buyer and the Principal was the “GC21 General Conditions of Contract”,
this clause 9 will apply. For clarity, clause 9 of these Terms & Conditions of Purchase will not apply if the principal under the Head Contract is any other person.
9.2 Meaning of Terms
Unless a capitalised term in clause 9 of these Terms & Conditions is already defined in these Terms & Conditions of Purchase, a capitalised term contained in clause 9 of these Terms & Conditions of Purchase will be given the same meaning as provided in the most recent Department of Infrastructure and Transport GC21 Terms and Conditions (which can be viewed at this link: https://www.dit.sa.gov.au/contractor_documents/dpti_general_conditions_of_
9.3 Deed of Warranty and Statutory Declaration
If required by the Buyer, the Seller must execute a Subcontractor Deed of Warranty and / or Statutory Declaration in the form provided in the Head Contract within such time as nominated by the Buyer.
The parties must do all they reasonably can to co-operate in all matters relating to the Order, but their rights and responsibilities under the Order (or otherwise) remain unchanged unless the parties agree in writing to change them.
The Seller acknowledges and agrees that it will permit the Principal, including its authorised employees and agents, to have access to the premises of the Seller at all reasonable times. The Principal may require access for any reasonable purpose connected with the Head Contract, including surveillance, audit, inspection, testing, certification and recording of information.
9.5 Duty not to hinder performance
Each party must do all it reasonably can to avoid hindering the performance of the other under the Order.
9.6 Early warning
9.6.1 Each party must promptly inform the other if it becomes aware of anything that is likely to affect the time for completion of the supply of the Goods, or the cost or quality of the Goods. The parties must then investigate how to avoid or minimise any adverse effect on the Goods and Scheduled Progress.
9.6.2 Information provided by a party under clause 9.6.1 must not be used against that party in any Claim or Issue resolution proceedings.
9.7 Evaluation and monitoring
9.7.1 The parties must meet regularly to evaluate and monitor performance of the Order.
9.7.2 The parties must decide jointly who will participate in the meetings. Participants may include Subcontractors, Suppliers, Consultants and, if appropriate, representatives of government authorities, end users and local communities. Participation in meetings does not give the participants any additional rights or responsibilities.
9.7.3 Nothing concerning or in connection with completed evaluation forms changes either party’s rights and responsibilities, or can be relied on or used by one party against another in any proceedings.
9.7.4 Participants in the evaluation and monitoring meetings must meet their own costs for attendance, and the parties must share equally the other costs.
9.8 No collusive arrangements
9.8.1 The Seller warrants that it has not engaged in any collusive or anti-competitive arrangement or understanding in connection with its tender for, or entry into, or during the period of the Order.
9.8.2 Without limiting any other right or remedy, the Buyer may recover from the Seller the value of any payment or other benefit made directly or indirectly to an unsuccessful tenderer or a trade or industry association if the Seller is in breach of the warranty in clause 9.8.1.
9.9 Collaborative Governance Team
9.9.1 If required by the Buyer, the Consultant must participate in a Collaborative Governance Team (CGT) formed under the Head Contract. The role of the CGT is to:
(a) provide guidance and leadership for the project;
(b) provide a forum for regular and formal interaction between senior executives of the Buyer and the Seller;
(c) establish and implement a governance plan and encourage and monitor the use of the principles developed in the plan; and
(d) monitor and review progress and performance.
9.9.2 If the Seller is required to participate in the CGT:
(a) the Seller may only change its nominated representative in exceptional circumstances such as illness, resignation from employment or a conflict of interest arising and such change may be subject to the Buyer’s or Principal’s written approval; and
(b) the Seller must attend CGT meetings at the times directed by the Buyer.
9.10 No Reliance
Nothing that occurs at any meeting, workshop or other process in connection with clauses 9.7, 9.8 and 9.9 (whether oral, written or by conduct) will:
9.10.1 relieve either party, or alter or affect their liabilities, rights, obligations or responsibilities under or arising out of this Order; or
9.10.2 be construed as an instruction by the Buyer to do or not do anything,
9.10.3 unless it is clearly documented in writing as an amendment to the Order or an instruction from the Buyer. Any minutes of any meeting or workshop held in connection with this clause do not form part of the Order and are for information only.
9.11 Governing law of the Contract
The Order is governed by the laws of South Australia, and the parties submit to the exclusive jurisdiction of the courts of South Australia.
9.12 Compliance with SA Government Requirements
9.12.1 Where required by the Building Work Sellers Act 1995 (SA), the Seller shall hold an appropriate Builders Licence. Evidence of compliance with this clause shall be submitted to the Buyer’s Authorised Person on request.
9.12.2 The Seller shall pay a levy of 0.25% in accordance with the Construction Industry Training Fund Act 1993 (SA), calculated on the basis of the Order price less any Buyer controlled amounts. This cost is deemed to be included in the Order price. Proof of payment of the levy may be required prior to the first or any progress payment being made under this Order.
9.12.3 The Seller must conduct itself in a manner that does not invite, directly or indirectly, the Principal’s officers, employees or agents or any public sector employee (as defined in the Public Sector Act 2009) to behave unethically, to prefer private interests over the Principal’s interests or to otherwise contravene the Code of Ethics for the South Australian Public Sector
9.12.4 The Seller must not engage any former public sector employee, either directly or through a third party, who has, received a separation package from the South Australian government, where such engagement may breach the conditions under which the separation package was paid to the former public sector employee.
9.12.5 The Seller shall comply with the Code of Practice for the South Australian Construction Industry (the “Code“) during the term of the Contract. The Seller shall ensure that all subcontracts contain a requirement to comply with the Code.
9.13 Respectful Behaviour
9.13.1 The Seller acknowledges the Buyer’s and Principal’s zero tolerance towards men’s violence against women in the workplace and the broader community.
9.13.2 The Seller agrees that, in supplying the Goods, the Seller’s personnel will at all times:
(a) act in a manner that is non-threatening, courteous, and respectful; and
(b) comply with any instructions, policies, procedures or guidelines issued by the Buyer regarding acceptable workplace behaviour.
9.13.3 If the Buyer believes that the Seller’s personnel are failing to comply with the behavioural standards specified in this clause, then the Buyer may in its absolute discretion:
(a) prohibit access by the relevant Seller’s personnel to the Buyer’s premises; and
(b) direct the Seller to withdraw the relevant Seller’s personnel from providing the Goods.
9.14 Industry Participation Plan
9.14.1 Agencies and private parties contracting to the Government of South Australia are required to comply with the South Australian Industry Participation Policy (SAIPP) and the supporting procedural and reporting requirements.
9.14.2 The Buyer must implement the Seller’s Standard or Tailored Industry Participation Plan (“SIPP” or “TIPP”) approved by the Industry Advocate (“IA”).
9.14.3 The Seller must provide an Industry Participation Report (“IPP Report”) in respect of each Industry Participation Reporting Period to the IA within two weeks of the end of each period, in the form set out at https://industryadvocate.sa.gov.au/wp-content/uploads/2020/02/Industry-Participation-Report-Template.xlsx
9.14.4 An Industry Participation Reporting Period is:
(a) the period between the Date of Contract and the date six (6) months after the date of the Order;
(b) each subsequent 6 month period during the term of the Order;
(c) if the Order ends on a date other than an anniversary of the date of the Order or an anniversary of the date in clause 9.14.4(b), the period from the conclusion of the preceding Industry Participation Reporting Period until the date of termination or expiry of the Order;
(d) for short-term projects of strategic importance to the State, the period notified by IA to the Seller in writing; and
(e) where the term of the Order is for a period less than 6 months, the term of the Order.
9.14.5 The Seller must attend any meeting scheduled by the IA during the term of the Contract to review how the SIPP or TIPP is being implemented and advanced, and for this purpose, the Seller must provide all information reasonably requested by the IA. The IA must give the Seller not less than ten (10) Business Days’ notice of any such meeting.
9.14.6 The IA may, by written notice require that the Seller within a reasonable time specified in the notice, provide information or documents to enable the IA to assess the Seller’s compliance with this clause 9.14.
9.14.7 If the IA reasonably believes that the Seller is not complying with the requirements of this clause 9.14, the IA may by notice in writing direct that the supply comply with those requirements.
9.14.8 Upon receipt of the notice, if the Seller is of the opinion that its noncompliance is reasonable and justified, the Seller may provide a response to the IA outlining that opinion and the reasons for it.
9.14.9 The Seller’s failure to comply, in whole or in part, with the commitments contained within the SIPP or TIPP will be a factor taken into account in the award of future contracts for the Government of South Australia.
9.14.10 In this clause, “Industry Advocate” or “IA” means the person from time to time appointed by the Governor to the position of Industry Advocate under s.5 of the Industry Advocate Act 2017.
9.15 Local Workers
9.15.1 This clause 9.15 applies where the Head Contract states that the project is a Major Infrastructure Project.
9.15.2 An objective of this Order is to increase the employment of Local Workers.
9.15.3 Without limiting other remedies available to the Buyer, the Seller acknowledges that failure to comply in part or in whole with the requirements of clause 9.15 will be deemed breach of the Order by the Seller.
9.15.4 The Seller must, subject to the other terms of this clause 9.15, ensure that the total labour hours performed by Local Workers (engaged by either the Seller or its Subcontractors) in the execution of work under the Order is no less than 90% of the total labour hours required to execute the work under the Order.
9.15.5 The Seller must submit to the Buyer, such information and reports as the Buyer may require to verify the Seller’s compliance with clause 9.15.4.
9.15.6 The Seller must (and must ensure that its Subcontractors) keep records of compliance with this clause 9.15.
9.15.7 The Seller must not (and must ensure that its Subcontractors do not) contravene the Privacy Act 1988 (Cth) or the South Australian Government’s Information Privacy Principles and must ensure that it and its Subcontractors obtain all necessary consents required to disclose a person’s personal information as required by or in connection with clause 9.15.
In this clause 9.15:
“Local Worker” means an employee whose principal place of residence for taxation purposes is in South Australia
9.16 Trainees, Aboriginal People and Long Term Unemployed
9.16.1 Clause 19.6 applies where Head Contract states that the project is a Major Infrastructure Project.
9.16.2 An objective of this Order is to increase the employment and training of Apprentices and Trainees, Aboriginal people and Long Term Unemployed (the “Target Group”).
9.16.3 Without limiting other remedies available to the Buyer, the Seller acknowledges that failure to comply in part or in whole with the requirements of clause 9.16 will be deemed a breach of the Order by the Seller and may be a factor that will be taken into account in the award of future contracts by the South Australian Government.
9.16.4 The Seller must, subject to subclauses the remaining terms of this clause 19.6, ensure that the total labour hours performed by people in the Target Group (engaged by either the Seller or its Subcontractors) in the execution of work under the Order is no less than 20% of the total labour hours required to execute the work under the Order.
9.16.5 The Seller must submit to the Buyer such information and reports as the Buyer may require to verify the Seller’s compliance with clause 9.16.
9.16.6 The Seller must (and must ensure that its Subcontractors) keep records of compliance with clause 9.16 and provide the Buyer with such assistance, including the provision of information, as it may reasonably require in connection with it carrying out an audit of the Seller’s compliance with this clause.
9.16.7 The Seller must not (and must ensure that its Subcontractors do not) contravene the Privacy Act 1988 (Cth) or the South Australian Government’s Information Privacy Principles and must ensure that it, and its Subcontractors, obtain all necessary consents required to disclosing a person’s personal information as required by or in connection with clause 9.16.
For the purpose of this clause 9.16:
(a) “Aboriginal person” means a person who identifies as being Aboriginal and/or is considered by members of his or her community as being Aboriginal. This definition includes Torres Strait Islander people;
(b) “Apprentice/Trainee” means a person (who may be either an apprentice or a trainee) undertaking training in a trade or declared vocation under a training contract as provided
9.17 Further Systems and Plans
9.17.1 If required by the Head Contract, the Seller must implement the following systems in accordance with the requirements of the Buyer’s Documents:
(a) Corporate WHS Management System;
(b) a certified Quality Management System;
(c) an accredited Environmental Management System.
9.17.2 If required by the Head Contract, the Seller must provide the following plans in accordance with the requirements of the Buyer’s Documents:
(a) a WHS Management Plan;
(b) a Workplace Relations Management Plan;
(c) a Quality Management Plan;
(d) an Environmental Management Plan.
9.18 Intellectual property
9.18.1 The Seller assigns or otherwise transfers Intellectual Property Rights in all Data created specifically for the Order, upon its creation, to the Buyer. The Seller, at its own cost, will do all things necessary, including execution of all necessary documentation, to vest ownership of all such Intellectual Property Rights in the Buyer.
9.18.2 The Seller must include provisions in all Subcontracts and agreements with Consultants to ensure that Intellectual Property Rights in all Data created specifically for the Order are assigned or otherwise transferred to the Buyer upon their creation.
9.18.3 The Seller, Subcontractors and Consultants are granted royalty-free licences to use the Data for the purposes of the Order.
9.18.4 The Seller is responsible for the timely payment of all royalties and fees for Intellectual Property Rights it uses in connection with the Order and the Goods.
9.18.5 The Seller indemnifies the Buyer against any claims (including Claims), actions, loss or damage arising out of any failure to make such payments or any infringement or alleged infringement of Intellectual Property Rights in relation to Data created or provided by the Seller in connection with the Order, including any related design, materials, documents or methods of working, or otherwise in the course of the Seller’s performance of the Order.
9.18.6 The Seller warrants that the Data created or provided by the Seller under the Order, including any related design, materials, documents and methods of working, will not infringe any Intellectual Property Rights.
9.18.7 The Seller must ensure that Data created specifically for the Order by or for the Seller is only used for the purposes of the Order.
9.18.8 The Buyer may grant the Seller a royalty-free licence to use innovations developed during the course of the Order for purposes agreed by the Buyer.
9.18.9 The Seller must procure from every person who is an author for the purposes of Part IX of the Copyright Act 1968 (Cth) of Data a written consent which is valid and effective under the Copyright Act and signed by that person by which that person irrevocably and unconditionally consents to the Buyer:
(a) using, disclosing, reproducing, transmitting, exhibiting, communicating, adapting, publishing or otherwise exercising its rights in relation to the Data anywhere in the world in whatever form any of the Buyer thinks fit, including the making of any distortions, additions or alterations to the Data or any adaption thereof, or to any part of the Data in a manner which, but for the consent, infringes or may infringe that person’s moral rights (as defined in the Copyright Act or equivalent laws world-wide) in the Data; and
(b) taking any action referred to in clause 9.18.9(a) without making any identification of the author of the Data.
The Seller must maintain all Data secret and confidential and disclose it only to those persons to whom disclosure is reasonably necessary for the purposes of the Order. This provision does not relate to Data which is generally available to the public or which is required to be disclosed by law.
9.20 Media releases and enquiries
9.20.1 The Seller must obtain the Buyer’s prior written consent to:
(a) any press release or promotional advertisement it wishes to make or place concerning the Order, the Buyer or the Goods; and
(b) the release for publication in any media of any information concerning the Order, the Buyer or the Goods.
9.20.2 The Seller must refer any media enquiries concerning the Order, the Buyer or the Goods to the Buyer. The Seller must not respond to any media enquiry without the Buyer’s prior written consent. All consultants, Subcontractors and Suppliers must comply with this requirement.
9.20.3 The Buyer may give or refuse its consent, in its absolute discretion.
9.21 Care of people, property and the environment, indemnities and limitations
9.21.1 Obligations of care
(a) The Seller is responsible for all of the following:
i. preventing personal injury or death;
ii. preventing loss or damage to the Site and the Goods;
iii. preventing loss or damage to adjoining and other properties and the environment arising in connection with carrying out the Goods;
iv. locating and caring for existing services;
v. repairing or making good loss or damage to the Goods and the Site; and
vi. bearing the cost of repairing, or making good, loss or damage to adjoining and other properties and the environment arising in connection with carrying out the Goods.
(b) If, in the opinion of the Buyer, urgent action is required to avoid death, injury, loss or damage, and the Seller does not take the necessary action immediately when the Buyer requests it, the Buyer may take the action (without relieving the Seller of its obligations), at the Seller’s cost, and the Buyer’s costs of doing so will be recoverable as a deduction from the Order price.
9.21.2 Indemnities for property, personal injury or death
(a) The Seller indemnifies the Buyer against loss or damage to:
i. the Goods, from the date the Seller begins carrying out the Goods; and
ii. the Site and anything brought onto the Site for the purposes of the Contract from the date the Seller is given access to the Site, or the relevant part of the Site,
until and including the actual completion of the whole of the supply of the Goods except that, in respect of any part of the Goods which is occupied or taken into use by the Principal under the Head Contract, this indemnity ceases when that part is occupied or taken into use and the indemnity in clause 9.21.2(b) then applies as if actual completion of the supply of the Goods had been achieved with respect to that part.
(b) After the actual completion of the of the whole of the supply of the Goods, the Seller indemnifies the Buyer against loss or damage to the Goods, the Site, and anything brought onto the Site for the purposes of the Order:
i. arising out of carrying out its obligations under the Order, including carrying out variations, making good defects and removing Materials from the Site; or
ii. which occurred while the Seller indemnified the Buyer under clause 9.21.2(a).
(c) The Seller’s liability for loss or damage under clauses 9.21.2(a) and (b) is reduced to the extent that the loss or damage is contributed to or caused by:
i. any act or omission of the Buyer or its agents, excluding the Seller and its Subcontractors;
ii. any risk specifically excepted in the Order; or
iii. war, invasion, act of foreign enemies, hostilities, (whether war be declared or not), act of terrorism, civil war, rebellion, revolution, insurrection or military or usurped power, martial law or confiscation by order of any Government or public authority.
(d) The Seller indemnifies the Buyer against the following where they arise in connection with carrying out the Goods:
i. all damage to property other than property covered under clause 9.21.2(a);
ii. all claims (including Claims), actions, other liability, and loss, including loss of use, in connection with property other than property covered under clause 9.21.2(a); and
iii. all claims (including Claims), actions, other liability, and loss in connection with personal injury, or death.
(e) The Seller’s liability to indemnify the Buyer under clause 9.21.2(d) is reduced to the extent that the loss, damage, injury or death is contributed to or caused by an act or omission by the Buyer.
9.21.3 Seller’s safety and environmental obligations
The Seller acknowledges the importance that the Buyer places on care of the environment and the provision of a safe workplace. The Seller must:
(a) comply with all requirements of the Order, applicable Australian Standards and all relevant law relating to protection of the environment and Work Health and Safety;
(b) ensure, in connection with the execution of the work under the Order, the health and safety of all persons including without limitation, members of the public, the Buyer’s Authorised Person, the Buyer’s employees, consultants and agents and the Seller’s employees, Subcontractors and agents;
(c) perform its obligations under this Order in an environmentally responsible manner so as to protect and preserve the environment; and
(d) except to the extent prohibited by law, indemnify and keep indemnified the Buyer against any loss that the Buyer suffers or incurs arising out of or in any way in connection with a failure by the Seller to comply with any of its environmental or safety obligations.
9.21.4 Limitation of liability
(a) Except for any liability in respect of the Prescribed Heads of Liability (which remain unlimited), the Buyer and the Seller agree to limit the liability of either party to the other party in respect of Direct Loss to the amount equal to the higher of:
i. the extent the Seller is paid or indemnified, or is entitled to be paid or indemnified, for the liability by an insurer under an insurance policy required by these Terms & Conditions of Purchase;
ii. to the extent the Seller would have been entitled to be indemnified for that liability by an insurer under an insurance policy required by the Terms & Conditions of Purchase, but for a failure by the Seller to effect and maintain the insurance policy required by the Terms & Conditions of Purchase; and
iii. one times the Order price.
(b) The liability of a party for loss or damage sustained by the other party will be reduced to the extent that such loss or damage has been caused by the other party’s breach of Order, wrongful act or omission or negligence.
(c) A party will not be liable to the other party for:
i. loss of business opportunity;
ii. loss of goodwill;
iii. loss of profit;
iv. loss of contracts;
v. loss arising from business interruption;
vi. loss of or corruption of data;
vii. loss of anticipated savings;
viii. loss of revenue;
ix. the cost of capital or other financing costs, or
x. loss of production,
other than a loss in connection with any of the Prescribed Heads of Liability or loss that should have been covered by insurance required under the Order to be held by the Buyer or Seller, or which would have been covered but for an act or omission of the Seller or any of its employees, agents, subcontractors, suppliers or Contractors.
9.21.5 Operation of Proportionate Liability Legislation
(a) To the extent permitted by law, the operation of Part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) (Proportionate Liability) Amendment Act 2005 (SA), and any equivalent statutory provision is excluded in relation to all rights, obligations and liabilities in connection with the Order whether such rights, obligations or liabilities are sought to be enforced as a breach of contract or a claim in tort or otherwise. The Seller acknowledges that clause 9.21.5 constitutes a special limitation for the purposes of Part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) (Proportionate Liability) Amendment Act.
(b) If the Seller breaches any of its obligations under this Order, and the operation of any legislation results in the Buyer being unable to recover some part of the consequential loss or damage from the Seller (“the Apportioned Loss”), as a separate obligation under the Order, the Seller indemnifies the Buyer in respect of the Apportioned Loss and must pay the Buyer the amount of the Apportioned Loss immediately on demand by the Buyer.
(c) The Seller must ensure that its subcontracts, including contracts with material suppliers, include provisions that are functionally equivalent to clause 9.21.5.
9.22.1 The Seller must hold:
(a) a public and products liability insurance policy to cover loss or damage to property or injury or death to persons arising out of or in connection with carrying out the Goods for $20 million per occurrence (or such higher amount as the Head Contract requires the Buyer to hold);
(b) a workers compensation insurance policy and related liability insurance in accordance with the requirements of the Return to Work Act 2014 (SA) and/or any equivalent legislation applicable to employees of the Seller who are connected with another state from time to time; and
(c) if the Seller is undertaking design or providing professional services, a professional indemnity insurance policy for $2 million per claim (or such higher amount as the Head Contract requires the Buyer to hold) to cover liability for breach of professional duty (whether in contract or otherwise) arising out of any negligence, whether in relation to errors in design, documentation, supervision or other professional duties of the Seller (whether in contract or otherwise); and
(d) such other insurance policies as required by the Buyer from time to time.
9.22.2 The Seller must give the Buyer proof that all insurance policies required to be effected by the Seller under the Order are current:
(a) before starting work in connection with the Order; and
(b) whenever requested in writing by the Buyer.
The Seller must give the Buyer certificates of currency of all insurance policies it is required to effect and maintain whenever requested in writing by the Buyer.
9.22.3 If the Buyer has a reasonable objection to an insurer or to any conditions of an insurance policy, and notifies the Seller of the objection and the reasons for the objection, the Seller must, within five Business Days after receiving the notification, either obtain insurance from another insurer or arrange changes to the insurance policy, so that the Buyer has no objections.
9.22.4 If the Seller fails to comply with clauses 9.22.1, 9.22.2 or 9.22.3, the Buyer may effect and maintain the relevant insurance policy and pay the necessary premiums. The Buyer may recover from the Seller the cost of the premiums and the Buyer’s reasonable costs of effecting and maintaining the insurance, as a debt due from the Seller to the Buyer.
9.22.5 The Seller must, as soon as practicable, inform the Buyer in writing of the occurrence of an event that may give rise to a claim under a policy of insurance effected by the Buyer and must ensure that the Buyer is kept fully informed of subsequent action and developments concerning the claim.
9.22.6 The Contractor must ensure that in respect of each policy of insurance required to be effected or taken out as required by clause 9.22 by the Seller or any Subcontractor, Supplier or Consultant, it:
(a) does not do anything which prejudices any insurance;
(b) if necessary, rectifies anything which might prejudice any insurance;
(c) reinstates an insurance policy if it lapses;
(d) does not cancel, materially vary or allow an insurance policy to lapse without the prior written consent of the Buyer;
(e) immediately notifies the Buyer of any event which may result in an insurance policy lapsing or being cancelled; and
(f) gives full, true and particular information to the insurer of all matters and things the non-disclosure of which might in any way prejudice or affect any such policy or the payment of all or any benefits under the insurance; and
(g) ensure that any non-disclosure by one insured does not prejudice the right of any other insured to claim on the policy; and
(h) ensure that a notice to the insurer by one insured will be deemed to be a notice by all insured parties.
9.23 Subcontractor relationships
9.23.1 The Seller is solely responsible for all Subcontractors and is liable for their acts and omissions as if such acts or omissions were those of the Seller. Subcontracting of any obligation under the Order does not affect the Seller’s obligations or liability under the Order.
9.23.2 The Seller indemnifies the Buyer against:
(a) all claims (including Claims), actions, loss or damage and all other liability arising out of any acts or omissions of Subcontractors; and
(b) any claim by a Subcontractor against the Buyer in respect of a breach of this clause 9.23 by the Seller.
9.23.3 The Seller must include in every Subcontract:
(a) details of the Seller’s obligations in connection with the Order which are to be carried out by the Subcontractor;
(b) consent for the Subcontract to be novated to the Principal or its nominee, if required by the Principal in the circumstances contemplated by clause 73.6.3 of the Head Contract;
(c) the right for the Principal to contact the Subcontractor directly to satisfy itself that payment is occurring in accordance with the conditions of the Subcontract;
(d) written provisions giving effect to the requirements set out in this clause 9 of the Terms & Conditions of Purchase;
(e) a written provision requiring the Seller to pay the Subcontractor within 15 days (or such other time specified by the Head Contract) after the Subcontractor has issued an invoice in accordance with the Subcontract;
(f) a written provision requiring the Subcontractor to submit to the Seller with every subcontractor payment claim, a completed and true Statutory Declaration that includes the equivalent of clauses 3, 4, 6, and 7 of the Statutory Declaration form in Schedule 6 of the Head Contract, modified to apply to the Subcontractor’s obligations to workers and sub-subcontractors, executed on the date of the payment claim.
9.24 Payment Claims
9.24.1 Subject to clauses 9.24.2 and 9.24.3, the Seller must submit:
(a) the first Payment Claim on the date that is two business days before the date determined in accordance with the Head Contract, for work carried out up to that date; and
(b) each subsequent Payment Claim, each month following the submission of the first Payment Claim, on the date that is two business days before the date specified in the Head Contract, for work carried out up to that date.
9.24.2 For Milestones, each Payment Claim may only include the value of work in those Milestones if they reached Completion before the specified submission date.
9.24.3 The Seller must submit the Final Payment Claim within 28 days of completing the supply of the Goods under the Order.
9.24.4 Payment Claims must be in the form of, and include all of the information required by, Schedule 3 (Payment Claim Worksheet) of the Head Contract or in another form agreed by the Buyer.
9.24.5 Every Payment Claim must:
(a) identify the work and Goods to which the Payment Claim relates;
(b) state the value of that work and those Goods;
(c) identify and state the amount the Seller claims for any other Claim that the Buyer has agreed or is required to pay under the Order;
(d) state the amount of interest, if any, that the Seller claims; and
(e) state the Claimed Amount, after allowing for retention and for payments already made.
9.24.6 Every Payment Claim must be accompanied by:
(a) a completed and true Statutory Declaration in the form of Schedule 6 of the Head Contract, executed on the date of the Payment Claim;
(b) all relevant calculations;
(c) all relevant Conformance Records;
(d) confirmation that the Seller has complied with clause 9.23.3(d); and
(e) any other information specified in the Order.
9.24.7 By making a Payment Claim the Seller warrants to the Buyer that:
(a) it has performed the work which is the subject of the Payment Claim;
(b) there are no obvious Defects in the work which is the subject of the Payment Claim;
(c) it has paid the Subcontractors all moneys in respect of work carried out and materials supplied in relation to the work which was the subject of the immediately preceding Payment Claim in accordance with the Subcontractors’ terms and conditions of engagement;
(d) it has paid the Seller’s employees all moneys in respect of the work which is the subject of the Payment Claim;
(e) the figures appearing in the Payment Claim are accurate;
(f) the Seller has complied with all of the obligations imposed on the Seller by any Subcontract where those obligations have failed to be complied with at the time of the making of the Payment Claim;
(g) the Seller is not aware of any Claim against the Buyer which is not included in the Payment Claim or could have been included in an earlier Payment Claim or notice of which should have been issued to the Buyer in respect of any potential Claim; and
(h) agrees to provide the Buyer (on request) with a list of Subcontractors and suppliers who are to be paid under this Payment Claim and allows the Buyer to contact them to confirm the accuracy of the Statutory Declaration.
9.24.8 The Seller acknowledges and agrees that the Principal has a right to contact the Seller directly to satisfy itself that payment is occurring in accordance with the provisions of these Terms & Conditions of Purchase.
9.25 Unfixed Materials
9.25.1 Payment Claims must not include any amount for Goods intended for incorporation in the Works but not yet incorporated unless all of the following conditions are satisfied:
(a) the Buyer has agreed in writing to pay the Seller for the unincorporated Goods;
(b) where the value of the unincorporated Goods is greater than $100,000, the Seller provides before or with the Payment Claim:
i. an Undertaking equal to the value of the unincorporated Goods (to be returned when the Goods are incorporated into the Works); and
ii. a statement in the terms in Schedule 11 (Statement regarding Materials) of the Head Contract;
iii. the Seller provides evidence before or with the Payment Claim that:
iv. the unincorporated Goods are, or upon payment will become, the property of the Buyer free of any Encumbrance; and
v. the unincorporated Goods are clearly identified as the property of the Buyer and are insured for their full value; and
vi. for any unincorporated Goods imported or to be imported into Australia, the Seller has given the Buyer a clean on board bill of lading drawn or endorsed to the order of the Buyer, appropriate insurance certificates and a Customs invoice.
9.25.2 The Seller warrants that no Encumbrance exists over any Materials paid for by the Buyer or incorporated into the Works.
9.25.3 Upon the Goods becoming the property of the Buyer, they are entrusted to the Seller for the purpose of carrying out the supply of the Goods and the Seller is solely liable for their care.
9.25.4 If the Order or the Seller’s employment under the Order is terminated by the Buyer, the Seller must ensure that, in respect of any unincorporated Goods for which payment has been made or which have been appropriated to the Order, the Buyer may enter upon any premises where the Goods are stored and take possession of these Goods.
9.26.1 Within 15 Business Days after being served a Payment Claim by the Seller, the Buyer must provide a Payment Schedule to the Seller that:
(a) identifies the Payment Claim to which it relates;
(b) indicates the amount the Buyer proposes to pay, as the Scheduled Amount; and
(c) if the Scheduled Amount is less than the Claimed Amount, provides reasons explaining why it is less and why any money is being withheld.
9.26.2 The Buyer must pay the Seller the Scheduled Amount within 15 days after receiving an invoice from the Seller in accordance with these Terms & Conditions of Purchase. The Seller cannot issue an invoice until the earlier of the Buyer issuing a Payment Schedule or, the longest period permitted for the service of a corresponding payment schedule under the Building and Construction Industry Security of Payment Act 2009 (Cth).
9.26.3 Unless stated otherwise in the Order, all payments to the Seller must be made by electronic funds transfer to the Seller’s account notified to the Buyer for that purpose. Changes to the Seller’s account details must be notified in accordance with protocols established by the Buyer.
9.26.4 Payment by the Buyer is payment on account only and is not evidence that the Buyer accepts the value, quantity or quality of work or that the Seller has complied with the Order or that the Seller has any particular entitlement.
9.27 Rise and Fall
9.27.1 The Head Contract provides for a rise and fall adjustment to the Buyer’s contract price under the Head Contract, for fluctuations in fuel, material and labour prices, on the terms set out in the Head Contract.
9.27.2 Where the adjustment is applied under the Head Contract, to the extent that the adjustment is relevant to the Seller, the Order price and the Goods, the Company shall proportionately apply any such adjustment to the Order price. In no circumstances shall any such adjustment exceed the relevant adjustment under the Head Contract (including when taking into account any amounts paid to any other suppliers or subcontractors by the Buyer in relation to the Head Contract, in respect of the relevant period).
9.27.3 If there is an adjustment which is to be made pursuant to clause 9.27.2 above, the Buyer shall apply the adjustment in respect of the Seller’s Payment Claim lodged in March of each year and in respect of the Seller’s Final Payment Claim. For clarity, any such adjustment shall take into account fluctuations that occurred in the months prior to the month in which the adjustment is being made, to the extent it is applicable to the Seller, Order price and Goods.