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 the Supply 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 any part of the Supply 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 commencing any part of the Supply.

1.4 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.

1.5 Any amendments or changes made by either party to the Purchase Order or these Terms and Conditions will not be binding unless expressly agreed in writing and signed by both parties.

1.6 Where a Purchase Order specifies that a Prior Agreement applies to the Supply, in the event of any inconsistency between this Agreement and any such Prior Agreement, 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 Supply stated in the Purchase Order. 

“Authority” means any public, statutory or other authority or utility which has jurisdiction in relation to the Supply.
 

“Completion” shall mean that stage when the Supply has been provided in full and the Supplier has satisfied all of its obligations under this Agreement to the reasonable satisfaction of the Principal (including providing to the Principal all Documents and other information required to be provided by this Agreement or reasonably requested by 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 as set out in the Purchase Order.
 

“Designated Modern Slavery Reporting Tool” means any modern slavery reporting tool as advised by the Principal.

 

“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 any GST payable by the Supplier) as set out in the Purchase Order, as may be 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 provision of the Supply.

“Goods” means the goods, products, materials, software or equipment supplied by the Supplier to the Principal in accordance with this Agreement.

“GST” means goods and services tax chargeable, or to which a person may be liable, under the GST Act.

“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Vth) or the Goods and Services Tax 1985 (NZ), as applicable.

“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.

 

"Jurisdiction" means the State or Territory in Australia or New Zealand in which the Supply is being provided. 

"Modern Slavery" has the same meaning as in the Modern Slavery Legislation, which includes, among other things, any activity, practice or conduct that would constitute an offence in relation to slavery, forced labour, involuntary servitude, debt bondage, human trafficking, and other slave-like exploitation as prohibited under all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time.

"Modern Slavery Legislation" means the law relating to modern slavery in the jurisdiction/s in which the Services are provided  and their respective regulations and codes from time to time, including but not limited to the Modern Slavery Act 2018 (NSW) Modern Slavery Act 2018 (Cth), the Immigration Act 2009 (NZ) and Crimes Act 1961 (NZ). 

“Personnel” means any person employed by the Supplier to provide the Supply, 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 Supply between the Supplier and the Principal. 

“Purchase Order” means a 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 of Australia where the Services are being provided or where the Services are being provided in New Zealand, the Construction Contracts Act 2002 (NZ).

“Services” means the services supplied by the Supplier to the Principal under this Agreement.

 

“Statutory Requirement” includes:
 

(a) the requirements of any Authority in respect of the Supply;

(b) all Acts, regulations, orders and awards of the Jurisdiction;

(c) any Australian Standards or New Zealand Standards applicable to the Supply; and

(d) the Building Code of Australia or the New Zealand Building Code as relevant.

“Supplier” means the party identified as the Supplier in the Purchase Order.

"Supplier Group Member" means the Supplier's Personnel and where the Supply is provided in Australia, the Supplier’s Related Bodies Corporate (as defined under the Corporations Act 2001 (Cth)), or where the services are provided in New Zealand the Supplier’s “Related Companies” (as defined in the Companies Act 1993.

"Supply" means the provision of the Goods, Works and/or Services by the Supplier under this Agreement, as described in the Purchase Order. 

“Valuation” means the Principal’s valuation of a proposed Variation.

“Variation” means a change to any part of the Supply instructed in writing by the Principal comprising any increase, decrease or omission to any part of the Supply (including for the purpose of having any part of the omitted Supply performed by another supplier).

“Working Day” means Monday to Friday (both inclusive), except for any statutory and public holidays, in the Jurisdiction.

"Works" means the works supplied by the Supplier to the Principal under this Agreement. 

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 reference 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. The Supply 

The Supplier must:
 

(a) provide the Supply to the Principal‘s reasonable satisfaction and in accordance with this Agreement; 

(b) properly and diligently execute the Supply with the degree of skill, care and competence expected of a skilled and experienced tradesman, technical or professional person;

(c) comply with all reasonable 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, provided that such processes are lawful and reasonable, as advised by the Principal from time to time;

(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) provide the Supply in a safe manner, isolate the worksite from the public and deliver up the worksite to the Principal in substantially the same condition it was in at the time the Supplier took possession of the worksite; 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 Supply will comply with the description in the Purchase Order and the requirements of this Agreement;

(b) the Supply will be fit for its intended purpose and any other purpose made known by the Principal to the Supplier either in or before the creation of a Purchase Order;

(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 provide the Supply 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 guarantees applicable to the Supply.

 

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.

6.2 With each claim for payment, the Supplier must:
 

(a) identify that portion of the Supply to which the claim for payment relates; and

(b) provide a “tax invoice”, or a document containing “taxable supply information” (in each case as defined in the applicable GST Act), via Vendor Cafe, no later than 30 days after the service being provided, 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, acting reasonably.

6.3 The Principal will pay all undisputed amounts of the Fee within 30 days (or other period if required by law) of receipt of the documents provided under clause 6.2.

6.4 Where the Principal disputes any amount of the claimed Fee in a tax invoice issued under clause 6.2, the Principal may, acting reasonably, issue to the Supplier a statement setting out the amount that the Principal has disputed in respect of the tax invoice and the reasons for disputing that amount.

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 is deemed to be a payment schedule for the purposes of the relevant Security of Payment Act.

6.6 Any disputes involving the amount of Fee that is owing (including under this clause 6) will be dealt with under clause 18. 

 

7. Compliance with Statutory Requirements

7.1 The Supplier must comply, at its own cost, with all Statutory Requirements in providing the Supply.

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 provide the Supply (including, without limitation, any required licence).

7.4 In providing the Supply, the Supplier must comply with all Statutory Requirements relating to occupational health and safety including, but not limited to, the provision of Safe Work Method Statement(s) (or their equivalent) and acknowledgement of all reasonable site rules and conditions. If a Safe Work Method Statement is required for any part of the Supply, the Contactor must provide this to the Principal prior to the commencement of that part of the Supply.

 

8. Variations
 

8.1 The Supplier will not vary any part of the Supply except as directed by the Principal in accordance with this clause 8.

8.2 The Principal may at any time vary any part of the Supply by giving notice (“Variation Notice”) in writing to the Supplier.

8.3 If the Principal varies any part of the Supply, then the parties shall use their best endeavours to agree on the cost of the Variation.  If both parties do not agree on the cost of the Variation within 5 Working Days of the Principal giving the Variation Notice, then the Principal, acting reasonably, shall make a Valuation in writing to the Supplier.  The Valuation will be based on the schedule of rates set out in the Purchase Order (if any), to the extent they are applicable to the varied Supply.

8.4 If the Supplier, acting reasonably, objects to the Variation Notice or the Valuation, the Supplier may, within 5 Working Days after receiving the Variation Notice or the Valuation from the Principal (as applicable), give the Principal notice of its intention to terminate the Agreement without any penalty or liability to the Principal, and the Principal may elect, within 5 Working Days after receipt of such notice, to either withdraw the Variation Notice or otherwise accept the Supplier's notice to terminate.  If the Principal fails to notify the Supplier of its election in writing within 5 Working Days, then the Variation Notice is deemed to have been withdrawn and the Supplier's right to terminate under this clause will lapse.

 

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 Supply.

10. Completion, Acceptance and Title

10.1 If a Date for Completion is specified in the Purchase Order, then the Supplier must Complete by the Date for Completion. If a Date for Completion is not specified in the Purchase Order, then the Supplier will Complete within a reasonable time.

10.2 Upon Completion the Supplier must:
 

(a) provide the Principal with confirmation of Completion by obtaining a signature on the Supplier‘s service docket/sheet from the Principal‘s representative (if required by the Principal);

(b) notify the Principal of any risks or hazards, or potential risks or hazards, identified during provision of the Supply that are outstanding at Completion; and

(c) return any access keys, swipe cards or other devices or goods provided to it by the Principal in connection with the Supply.

10.3 The Supplier shall deliver to the Principal on or before Completion (and as a condition precedent to Completion), any manufacturer's or supplier's warranty (or information necessary to claim under such warranty) applicable in relation to the Supply or any equipment or components incorporated into any part of the Supply, unless the Principal notifies the Supplier in writing that it does not require such warranty from a particular supplier.

10.4 Payment of any invoice or the signing of delivery receipts by the Principal will not constitute deemed acceptance of any part of the Supply or Completion of the Supply.

10.5 Title in any Goods supplied will pass to the Principal on delivery to the Premises. Subject to clause 12, risk in any Goods supplied will pass to the Principal upon delivery to the Premises.

10.6 Notwithstanding that the Principal has taken delivery of the Goods, the Supplier will remain responsible for any loss or damage to the Goods which occurs prior to delivery.

 

11. Insurance

11.1 Prior to commencement of the Supply, the Supplier must effect and maintain with an insurer acceptable to the Principal (acting reasonably) the following insurances in accordance with clause 11.3:
 

(a) where part of the Supply incorporates an element of design or professional advice (which includes design, modelling or analysis in connection with the Supply), professional indemnity insurance for not less than $AUD10,000,000 (or $NZD2,000,000 where the Services are provided in New Zealand) in respect of any single occurrence;

(b) public and products liability insurance for not less than $AUD20,000,000 (or $NZD5,000,000) 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 Supply involves 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, where applicable:
 

(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 11.1(b) are maintained until Completion.

11.4 The Supplier must, if requested by the Principal, provide any information reasonably required by the Principal to complete any proposal for a policy of insurance to be effected by the Principal in respect of the Supply.

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 Supply and also whenever reasonably 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 reasonably require.

 

12. Standard of Supply

If at any time the Principal reasonably determines that any part of the Supply is not in accordance with this Agreement (“Defective Supply”), the Principal may direct the Supplier to replace, correct, remove or vary (as applicable) any Goods, Services or Works which are the subject of the Defective Supply ("Rectification") at no cost to the Principal, provided that the Principal gives the Supplier a reasonable opportunity to inspect the Defective Supply and to issue a Dispute Notice under clause 17 if it does not agree that the Supply is a Defective Supply.  To the extent that the Supplier takes possession of any Goods for the purposes of performing Rectification under this clause 12, risk in the Goods will pass from the Principal to the Supplier from the time that the Supplier takes possession until the Goods are delivered back to the Principal. Failing compliance with such a direction, the Principal may engage another supplier to carry out the Rectification, the cost of which will be a debt due from the Supplier to the Principal. In additional, a failure to comply with such a direction will be a material breach for the purposes of clause 16.1. 

13. Design

The Supplier must ensure that any design, program or plan prepared by it as part of the providing the Supply will:
 

(a) be fit for its intended purpose as made known to the Supplier either in or prior to the creation of a Purchase Order;

(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 providing the Supply or as required by law.

14.2 The Supplier must not advertise or publish the fact that the Supplier provides the Supply for the Principal without the Principal‘s prior written consent.

 

15. Modern Slavery

15.1 The Principal is committed to operating a safe and ethically responsible business and expects that those entities it contracts with to be equally committed. The Principal takes an active approach in combatting the risks of Modern Slavery throughout its supply chains. The Principal requires the Supplier to collectively work towards the goal of eliminating Modern Slavery in the supply chain relevant to this Agreement.
 

As part of this commitment, the Principal conducts a number of random audits of the various entities it contracts with and may request annual declarations in accordance with clause 15.2(e).

15.2 The Supplier must:
 

(a) not engage in any activity that constitutes or involves Modern Slavery in the performance of obligations under this Agreement;

(b) comply with all applicable Modern Slavery Legislation and this clause 15;

(c) commit to investigating its practices and those of its Supplier Group Members regularly, to ensure that there are no known activities that could constitute or involve Modern Slavery anywhere in its business, operations or supply chain;

(d) if requested by the Principal, where the Principal believes on reasonable grounds that the Supplier may be in breach of this clause 15, permit the Principal to conduct interviews and surveys of the Supplier's and the Supplier Group Members' employees, with a representative of the Supplier present; and

(e) if requested by the Principal, provide a declaration, given by at least one director of the Supplier, in a form approved by the Principal, declaring that the Supplier is complying with this clause 15.2.

15.3 The Supplier warrants that, at the date of this Agreement:
 

(a) it has not, engaged in any activity that constitutes or involves Modern Slavery in the performance of, or in anticipation of its obligations under this Agreement;

(b) it has investigated its practices and those of its Supplier Group Members and is satisfied that there are no activities that constitute or could constitute or involve Modern Slavery engaged in anywhere in its business, operations or supply chain;

(c) it and each Supplier Group Member:

(i) have not been convicted of any offence involving Modern Slavery; and

(ii) have not been, and are not currently, the subject of any formal complaint, investigation, inquiry or enforcement proceedings by any Authority in connection with Modern Slavery; and

(d) any information provided to the Principal under this clause 15.3 is, and will be, to the best of Supplier's knowledge, true, complete and accurate.

15.4 Information and Cooperation
 

(a) For the purpose of this clause, 'Information' may include information as to any risks of, actual or suspected occurrences of, and remedial action taken in respect of, Modern Slavery but excludes Personal Information within the meaning of the Privacy Act 1988 (Cth) (or where the Supply is provided in New Zealand, the Privacy Act 2020 (NZ)), except with the prior express consent of the person affected.

(b) If reasonably requested in writing by the Principal, the Supplier must:

(i) supply Information to either the Principal or an auditor appointed by the Principal which evidences that the Supplier has complied with clause 15.2(c); or

(ii) register for and stay registered for, at the Supplier's own expense, and provide any required Information to a Designated Modern Slavery Reporting Tool and keep the Information in that Designated Modern Slavery Reporting Tool up to date.

15.5 If the Principal becomes aware of any actual or suspected occurrence of Modern Slavery in the Supplier's operations or supply chains (or in those of a Supplier Group Member):
 

(a) the Principal may give a notice to the Supplier that an audit of the Information provided by the Supplier in accordance with clause 15.4(b)(i) will be conducted by the Principal or an auditor appointed by the Principal; and

(b) the Supplier must cooperate with the audit.

The Principal may notify the relevant Minister (currently the Minister for Home Affairs), and the Australian Border Force, where it has reasonable grounds to believe the Supplier has systemic instances of Modern Slavery in its supply chain, and the Supplier does not otherwise self-report to the authorities, or co-operate with the appointed auditor‘s request for information.

15.6 The Supplier must take reasonable steps to ensure that all subcontracts that relate to the Supply or the whole or any part of this Agreement contain substantially the same provisions as this clause 15.

15.7 For the avoidance of doubt, this clause 15 is a material clause of the Agreement for the purposes of clause 16.

 

16. Termination

16.1 Either party (Non-Defaulting Party) may immediately terminate this Agreement by written notice to the other party (Defaulting Party) if the Defaulting Party breaches a material term of this Agreement which, in the reasonable opinion of the Non-Defaulting Party: 
 

(a) cannot be remedied; or

(b) can be remedied, but is not remedied by the Defaulting Party within 14 days after the Non-Defaulting Party gives written notice of the breach. 

16.2 If this Agreement expires or is terminated for any reason, the Principal must pay the Supplier the pro-rata proportion of the Fee payable under this Agreement for that part of the Supply that has been provided up to the date of termination of this Agreement, excluding any amount previously paid to the Supplier for provision of that part of the Supply.

16.3 The rights of termination under this clause 16 are in addition to any other rights the parties may have under this Agreement or at law.

 

17. General

17.1 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 (which are not subject to a bona fide dispute) may be deducted from moneys otherwise payable to the Supplier under this Agreement.

17.2 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 (accessed here: https://www.dexus.com/discover-dexus/about-us/corporate-governance) as at the date of this Agreement, and as updated on the website from time to time (to the extent such updates are consistent with this Agreement and would not cause a material detriment to the Contractor).

17.3 This Agreement will be governed by the laws of the Jurisdiction and the parties irrevocably agree to submit to the exclusive jurisdiction of the courts of that Jurisdiction and any courts having appellate jurisdiction from them.

17.4 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.

17.5 Clauses 5, 11 and 14 and all other warranties and provisions which expressly or by implication from their nature are intended to survive termination, survive termination of this Agreement.

 

18. Disputes

18.1 If a difference or dispute (together called a “Dispute”) between the parties arises out of or relates to this Agreement, including without limitation:

(a) any questions concerning the Agreement's validity, scope, construction or application; or

(b) the breach, termination or subject matter of it; or

(c) any claim in tort, in equity or pursuant to any domestic or international statute or law,

then any party may give the other a Notice of Dispute.

18.2 Within 10 Working Days after receiving a Notice of Dispute, the parties will confer at least once to resolve the Dispute or to agree on methods of doing so, at every such conference each party will be represented by a person having authority to agree such resolution or methods.  All aspects of every such conference, except the fact of its occurrence, will be confidential and will attract without prejudice privilege.

18.3 In the event that the Dispute cannot be resolved by conference, or the parties cannot agree on an alternative method to resolve the Dispute within 28 Working Days after receiving a Notice of Dispute as referred to in clause 18.2, the parties will be free to commence any court proceedings relating to the Dispute.

18.4 If a Dispute arises, a party may not commence any court proceedings relating to the Dispute unless it has first complied with clauses 18.1, 18.2 and 18.3 except where the party seeks urgent interlocutory relief.