Purchase Order Terms

Dexus
Standard Terms and Conditions for a Purchase Order

1 Application of Terms and Conditions


1.1 The Supplier acknowledges and agrees that these Standard Terms and Conditions for a Purchase Order (“Terms and Conditions”) apply to the provision of Services by the Supplier as described in the Purchase Order.
1.2 The Supplier is taken to have accepted the Purchase Order and these Terms and Conditions when it notifies the Principal that it accepts the Purchase Order or commences the Services described in the Purchase Order, whichever is the earlier.
1.3 If the Supplier is unable or unwilling to accept the Purchase Order and these Terms and Conditions, it must notify the Principal before the delivery of Goods and / or commencing any part of the Services.
1.4 Subject to clause 1.6, the Purchase Order and these Terms and Conditions constitute the entire Agreement between the parties. These Terms and Conditions apply to the exclusion of any of the Supplier’s terms and conditions, including any such terms and conditions provided with this Agreement or appearing on or forming part of the Supplier’s delivery dockets or invoices (even if any representative of the Principal signs those terms and conditions or annexes them to the Purchase Order).
1.5 Any amendments or changes made by the Supplier to the Purchase Order or these Terms and Conditions will not be binding on the Principal unless expressly agreed in writing and signed by the Principal.
1.6 In the event of any inconsistency between this Agreement and any Prior Agreement as set out in the Purchase Order, the terms and conditions contained in that Prior Agreement shall prevail over this Agreement to the extent of the inconsistency.

2 Definitions

“Agreement” means the Purchase Order and these Standard Terms and Conditions for the provision of the Services stated in the Purchase Order. 
“Authority” means any public, statutory or other authority or utility which has jurisdiction in relation to the Services.
“Completion” shall mean that stage when the Services are complete and the Supplier has satisfied all of its obligations under this Agreement to the satisfaction of the Principal and “Complete” shall have a corresponding meaning.
“Confidential Information” means any information (in any form) made available by or on behalf of the Principal or occupiers of the Premises but excludes information which is or becomes part of the public domain (other than as a result of a breach of this Agreement by the Supplier).
“Date for Completion” means the date (if any) by which the Supplier must achieve Completion of the Services as set out in the Purchase Order.
 “Documents” means all documents which the Supplier is required to produce pursuant to this Agreement including (without limitation) plans, drawings, specifications, models, calculations, computer disks, samples, prototypes, test results, manuals, other documents, information and data stored by any means.
“Fee” means the fee payable to the Supplier (including an amount in respect of goods and services tax payable by the Supplier) as set out in the Purchase Order, as varied under this Agreement, and unless expressly agreed in writing by the Principal, is inclusive of all other costs and expenses incurred by the Supplier in the performance of the Services.
 “Goods” means the goods, products, materials, software or equipment supplied by the Supplier to the Principal in accordance with this Agreement.
“Intellectual Property” means any intellectual or industrial property whether protected by statute, at common law or in equity, including any patent and patent application, invention, copyright, trade mark, moral right or design right (whether or not registrable and including modifications or improvements to the same), in any design, specification, process, technique, software, computer programs, business names, know how, trade secret, technical information, financial information, business method and Confidential Information.
 “Personnel” means any person employed by the Supplier to perform the Services, including its employees, subcontractors, consultants and agents.
“Premises” means the property or properties shown on the Purchase Order.
“Principal” means the party identified as the Principal in the Purchase Order.
“Prior Agreement” means any other current written agreement for the Services between the Supplier and the Principal. 
 “Purchase Order” means the document provided by the Principal’s representative to the Supplier with the title “Dexus Purchase Order”. 
“Purchase Order Number” means the order number stated on the Purchase Order.
“Security of Payment Act” means the Building and Construction Industry Security of Payment Act 1999 (NSW) or the equivalent Act in the State or Territory where the Services are being supplied.
“Services” means the provision of the Goods (if any), works and/or services by the Supplier under this Agreement, as described in the Purchase Order.
“Statutory Requirement” includes:
a. the requirements of any Authority in respect of the Services;
b. all Acts, regulations, orders and awards of the jurisdiction where the Services are being carried out;
c. any Australian Standards applicable to the Services; and
d. the Building Code of Australia.
“Supplier” means the party identified as the Supplier in the Purchase Order.
 “Variation” means a change to the Services instructed in writing by the Principal comprising any increase, decrease or omission to the Services (including for the purpose of having the omitted Services performed by another supplier).
“Working Day” means Monday to Friday (both inclusive) except for statutory and public holidays.

3 Interpretation

In this Agreement, unless a different intention is specifically expressed:
a. words in singular are deemed to include the plural and vice versa;
b. headings and subheadings are inserted for convenience only and shall not be used to interpret the text;
c. a references to a person or individual includes that person’s successors, administrators, executors and assigns and a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association; and
d. the words “including” and “includes”, and any variation of those words, will be read as if followed by the words “without limitation”.

4 Performing the Services

4.1 The Supplier must:
a. perform the Services to the Principal’s reasonable satisfaction and in accordance with this Agreement; 
b. properly and diligently execute the Services with the degree of skill, care and competence expected of a skilled tradesman, technical or professional person experienced in performing the same or similar services;
c. comply with all directions made by the Principal provided that such directions do not, in the reasonable opinion of the Supplier, put the Supplier’s Personnel in or potentially in a place or position where the work site becomes unsafe and contrary to the Supplier’s obligation under any laws or Statutory Requirement relating to occupational health and safety; 
d. comply with the Principal’s contractor management systems, including registration, site sign-in and out and induction processes;
e. comply with the Principal’s Hazardous Materials Management Plan (if any);
f. return all issued keys and access cards upon Completion or earlier termination of this Agreement;
g. perform the Services in a safe manner, isolate the Services from the public and leave the worksite clean and tidy; and 
h. not isolate or leave isolated any building systems without the approval of the Principal. 

5 Representations and Warranties

5.1 The Supplier represents and warrants to the Principal that: 
a. the Services will comply with the description in the Purchase Order and the requirements of this Agreement;
b. the Services will be fit for their intended purpose and any other purpose made known by the Principal to the Supplier;
c. the Goods (if any) will be new, of good merchantable quality and free from defects in materials, workmanship and/or installation;
d. the Goods (if any) will be free from all charges, liens and encumbrances;
e. the Supplier and its Personnel are suitably qualified, skilled and competent to perform the Services in accordance with the requirements of this Agreement;
f. it has the power and capacity to enter into and perform its obligations under this Agreement; and
g. as far as the Supplier is aware, it is entitled to licence any Intellectual Property transferred to the Principal under this Agreement.
5.2 The warranties in clause 5.1 are in addition to any statutory warranties applicable to the Services.

6 Payment by Principal

6.1 Unless the Purchase Order provides for periodic progress payments or payment by instalments, the Supplier may only submit a payment claim after Completion of the Services. 
6.2 With each claim for payment, the Supplier must:
a. identify the Services to which the claim for payment relates; and
b. provide a tax invoice to the Principal for the Fee which states the Purchase Order Number to which the invoice relates and is otherwise in a form acceptable to the Principal.
6.3 Subject always to the Supplier complying with its obligations under this Agreement, the Principal will pay the Fee within 30 days (or other period if required by law) of receipt of the documents provided under clause 6.2. 
6.4 The Principal may issue to the Supplier a statement setting out the amount payable in respect of the payment claim and the reasons for any difference between that amount and the amount claimed. 
6.5 If this Agreement is a construction contract for the purposes of the Security of Payment Act any certificate issued by the Principal under clause 6.4 in is deemed to be a payment schedule for the purposes of the relevant Security of Payment Act.

7 Compliance with Statutory Requirements

7.1 The Supplier must comply, at its own cost, with all Statutory Requirements in carrying out the Services. 
7.2 The Supplier will take all reasonable steps to ensure that its Personnel comply with clause 7.1.
7.3 The Supplier warrants that it has the approval of any relevant Authority or professional body to carry out the Services (including, without limitation, any required licence).
7.4 In carrying out the Services, the Supplier will be responsible for and comply with all relevant occupational health and safety obligations including, but not limited to, the provision of Safe Work Method Statement(s) (or their equivalent) and acknowledgement of the site rules and conditions. If a Safe Work Method Statement is required for the Services, the Contactor must provide this to the Principal prior to the commencement of the Services.

8 Variations


8.1 The Supplier will not vary the Services except as directed by the Principal in accordance with this clause 8.
8.2 The Principal may at any time vary the Services by giving notice in writing to the Supplier.
8.3 Unless the parties agree upon a price for such Variation, the price will be based on any rates or prices provided in this Agreement, or if no rates or prices are provided, for a reasonable price as determined by the Principal (based, where applicable, on reasonable industry rates or prices).

9 Operations of the Principal and Tenants


The Supplier must ensure that disturbance to the Principal, the Premises (including any services to the Premises) and the Principal’s tenants at the Premises is minimised as much as is practicable having regard to the nature of the Services.

10 Completion, Acceptance and Title


10.1 If a Date for Completion is specified in the Purchase Order, then the Supplier must Complete the Services by the Date for Completion and time is of the essence with respect to the Supplier’s obligations under this Agreement. If a Date for Completion is not specified in the Purchase Order, then the Supplier will Complete the Services within a reasonable time.
10.2 In this Agreement, Completion shall mean: 
a. the Services are, in the Principal’s opinion, Complete except for minor defects:
i. which do not prevent the Services from being used for their intended purpose;
ii. which the Principal determines the Supplier has reasonable grounds for not promptly rectifying; and
iii. the rectification of which will not prejudice the convenient use of the Services or the Premises.
b. the Supplier has provided to the Principal all Documents and other information regarding the Services reasonably requested by the Principal;
c. the Supplier has provided the Principal with confirmation of Completion of the Services by obtaining a signature on the Supplier’s service docket/sheet from the Principal’s representative (if required by the Principal);
d. the Supplier has notified the Principal of any risks or hazards, or potential risks or hazards, identified during the Services that are outstanding at the Completion of the Services; and
e. the Supplier has returned any access keys, swipe cards or other devices or goods provided to it by the Principal to enable it to carry out the Services. 
10.3 The Supplier shall deliver to the Principal before Completion (and as a condition precedent to Completion), warranties from all subcontractors engaged by the Supplier in relation to or in connection with the Agreement and all suppliers of equipment or components incorporated into the Services, unless the Principal notifies the Supplier in writing that it does not require such warranties from a particular subcontractor or supplier.
10.4 Payment of any invoice or the signing of delivery receipts by the Principal will not constitute deemed acceptance of any Goods or the Completion of any Services.
10.5 Title in any Goods supplied will pass to the Principal on delivery to the Premises. Risk will pass to the Principal upon Completion.
10.6 Notwithstanding that the Principal has taken delivery of the Goods and/or Services, the Supplier will remain responsible for any loss or damage to the Goods and/or Services which may have occurred prior to delivery.

11 Insurance


11.1 Prior to commencement of the Services the Supplier must effect and maintain with an insurer acceptable to the Principal the following insurances in accordance with clause 11.3:
a. where the Services incorporates an element of design or professional advice (which includes design, modelling or analysis in connection with the Services), professional indemnity insurance for not less than $10,000,000 in respect of any single occurrence;
b. public and products liability insurance for not less than $20,000,000 in respect of any single occurrence; and
c. workers’ compensation and employer’s liability insurance in accordance with applicable awards or legislation.
11.2 Where the Services are for the supply of Goods only, the Supplier is only required to provide the insurances stated under clause 11.1(b) and (c).
11.3 The Supplier must ensure that:
a. the insurance policy under clause 11.1(a) is maintained for at least 6 years after Completion; and
b. the insurance policies under clauses 11.1(b) and (c) are maintained until Completion.
11.4 The Supplier must, if requested by the Principal, provide any information required by the Principal to complete any proposal for a policy of insurance to be effected by the Principal in respect of the Services.
11.5 The Supplier must provide the Principal with evidence of the terms and currency of insurances effected by the Supplier in accordance with clause 11.1 prior to commencing the Services and when requested by the Principal.
11.6 Within 5 Working Days of the Supplier becoming aware of any event which may give rise to an insurance claim against it, or which might affect rights under the Supplier’s policies of insurance, the Supplier must:
a. notify the Principal in writing of the claim or event which might affect the Supplier’s rights under its policies of insurance; and
b. give the Principal any further information regarding the relevant issue as the Principal may require.

12 Standard of Services

12.1 If at any time the Services (or any materials or Goods used or supplied by the Supplier in connection with the Services) are not in accordance with this Agreement (“Defective Services”), the Principal may direct the Supplier to replace, correct, remove or vary such Defective Services at no cost to the Principal.  Failing compliance with such a direction, the Principal may engage another supplier to carry out the Services, the cost of which will be a debt due from the Supplier to the Principal.  
12.2 Alternatively, the Principal may accept the Defective Services and reduce the amount payable to the Supplier by the Principal’s estimate of any loss suffered by the Principal.  

13 Design

The Supplier must ensure that any design, program or plan prepared by it will:
a. be fit for its intended purpose;
b. be efficient and economical to use;
c. meet any Statutory Requirements and the requirements of this Agreement; and
d. not infringe any industrial or Intellectual Property rights of any person.

14 Confidentiality

14.1 The Supplier must not (and must ensure that its Personnel do not) use or give any Confidential Information to any person except to its Personnel in the course of carrying out the Services or as required by law.
14.2 The Supplier must not advertise or publish the fact that the Supplier carries out the Services for the Principal without the Principal’s prior written consent.

15 General

15.1 Without limiting any other right or remedy the Principal may have under this Agreement, any money owing to the Principal in connection with this Agreement may be deducted from moneys otherwise payable to the Supplier under this Agreement.
15.2 The Supplier must comply with:
a. the Property Council of Australia (PCA) Principles for Fair Contracting as provided on the PCA website from time to time; and
b. Dexus’s Supplier Code of Conduct and Sustainable Procurement Policy as provided on the public website of Dexus from time to time.
15.3 This Agreement will be governed by the laws of the State or Territory where the Service are being performed and the parties irrevocably agree to submit to the exclusive jurisdiction of the courts of that State and any courts having appellate jurisdiction from them.
15.4 The relationship of the Principal and the Supplier under this Agreement is that of principal and independent contractor.  This Agreement does not make either party a joint-venturer, partner, employee or agent of the other. 
15.5 Clauses 5, 11 and 144 and all other warranties and provisions which expressly or by implication from their nature are intended to survive termination, survive termination of this Agreement.