PURCHASE ORDER CONDITIONS

1. AGREEMENT

1.1 This Agreement shall be deemed to be accepted by the Supplier for the Supplies from the Supplier’s commencement of the Supplies after receipt of the Purchase Order.
1.2 Where the Supplier has provided its own written contract terms, their contract terms shall have no effect and the terms of this Purchase Order shall apply and shall constitute the entire agreement between the parties.

2. PERFORMANCE

2.1 The Supplier shall, as an independent contractor, provide to the Purchaser:
(a) all:
(i) goods referred to in the description of the Supplies in the Purchase Order (“Goods”);
(ii) services referred to in the description of the Supplies in the Purchase Order (“Services”); and/or
(iii) works referred to in the description of the Supplies in the Purchase Order (“Works”); and
(b) at the Supplier’s own cost, all labour, materials, services, goods, plant, equipment, or other things necessary to provide the Goods, Services or Works (whether not expressly described in this Agreement) or comply with its obligations under this Agreement,
(which for the purpose of this Agreement are collectively called the “Supplies”).
2.2 The Supplier shall carry out the Supplies in accordance with this Agreement.
2.3 The Purchaser shall pay the Supplier the Price in accordance with this Agreement.
2.4 The Price is:
(a) firm and final;
(b) not subject to rise and fall; and
(c) with the exception of GST, inclusive of all taxes, duties and charges imposed or levied in Australia or overseas.

3. SUPPLIER’S OBLIGATIONS

3.1 The Supplier shall carry out and complete the Supplies:
(a) exercising a high standard of skill, care and diligence;
(b) in accordance with this Agreement and The Purchaser’s directions;
(c) in accordance with all legislative requirements and any relevant Australian Standards (or other standards) or codes applicable to the Supplies for the duration of this Agreement;
(d) in a manner that is suitable, appropriate and adequate for the purposes stated in, or reasonably inferred from, the Purchase Order;
(e) in consultation with the Purchaser;
(f) with due expedition and without delay;
(g) to the extent the Supplies relates to Goods, deliver the Goods to the Delivery Address on the Delivery Due Date. Unless otherwise specified, the Supplier must unload the Goods as directed by The Purchaser; and
(h) to the extent the Supplies relates to Services and/or Works, perform the Services and/or Works at the Delivery Address by the Delivery Due Date.
3.2 Without limiting the Supplier’s obligations under any legislative requirement in respect to the Supplies, the Supplier warrants that the Supplies, in the case of Goods:
(a) are new (unless otherwise specified), are of good material and workmanship and free from defects or faults of any kind in both materials and workmanship;
(b) are free of encumbrances and that the Supplier has good title to them;
(c) will be accompanied by relevant manufacturer quality certificates;
(d) are of merchantable quality and fit for the purpose for which The Purchaser requires them; and
(e) will match the description (including performance criteria) and any specifications referred to in the Agreement and any sample or demonstration of the Goods (including as to the nature, quality or performance of the Goods) provided by the Supplier.
3.3 Without limiting the Supplier’s obligations under any legislative requirement in respect to the Supplies, the Supplier warrants that the Supplies in the case of Services and/or Works:
(a) are executed in an efficient manner to standards of skill and care normally exercised by qualified and experienced professional or trade persons in the performance of similar services; and
(b) will match any demonstration of the Services and/or Works (including as to the nature, quality or performance of the Services and/or Works) provided by the Supplier.
3.4 The Supplier must give the Purchaser full access to inspect or witness tests on the Services and/or Works or their results at any time during the performance of the Services and/or Works.
3.5 The Supplier must pay all entitlements owing to its employees relating to the performance of the Supplies under this Agreement as and when they fall due including, without limitation, all payments due in relation to wages and salaries, allowances, casual loadings, termination payments, entitlements under an award or agreement and leave entitlements.
3.6 In relation to its employees, the Supplier warrants that:
(a) all employees who perform the Supplies have the required trade or professional qualifications which are required by legislative requirements or are necessary to allow the effective performance of the Supplies;
(b) it will ensure that the trade and professional qualifications of employees will be kept current and in accordance with any legislative requirements or professional requirements;
(c) all employees who perform Supplies under this Agreement are medically fit to perform the Supplies and meet minimum standards associated with their employment category; and
(d) it has performed thorough reference checks on all employees who perform Supplies under this Agreement.

4. TIME AND LATE DELIVERY

4.1 Time is of the essence in respect to the Supplier’s obligations under this Agreement.
4.2 If the Supplier becomes aware of any circumstances which may cause delay to the carrying out of the Supplies, the Supplier must immediately notify the Purchaser of the cause of the delay and its expected duration.
4.3 The Purchaser may, in its absolute discretion, adjust the Delivery Due Date by notice in writing to the Supplier.
4.4 If the Supplier fails to deliver the Goods to the Delivery Address on the Delivery Due Date and/or perform the Services and/or Works at the Delivery Address by the Delivery Due Date, the Supplier must pay The Purchaser any loss or damage suffered as a result of the Supplier’s failure to deliver.
4.5 Damages may be deducted from any moneys which may be or thereafter become payable to the Supplier by The Purchaser.

5. SITE

5.1 Where applicable, the Supplier shall only access and use the Site:
(a) in accordance with the Purchaser’s reasonable directions;
(b) subject to the Purchaser’s right to require the prompt removal of any person from the Site; and
(c) at the locations directed by the Purchaser.
5.2 The Supplier shall in providing the Supplies:
(a) protect all people from death or injury (including by the provision and maintenance of barricades, guards, fences, signs, lighting and traffic flagging);
(b) protect the Supplies (including any unfixed plant, materials and goods) and all other property (including property or works of the Purchaser or others) from loss or damage; and
(c) promptly make good, at its own cost, any damage caused by the Supplier to the Supplies or any property of the Purchaser or third parties.

6. GOODS

6.1 Without limiting clause 3, the Supplier shall:
(a) properly package and protect the Goods to prevent damage during transit and on delivery and to ensure safe delivery; and
(b) give the Purchaser full access to the Supplier’s premises for the Purchaser to inspect the Goods prior to delivery.

7. SERVICES

7.1 Without limiting clause 3, the Supplier shall, where the Services include Design Services:
(a) so far as reasonably practicable, consult with a designer of the whole or any part of the Work about how to ensure that the health and safety risks arising from the design during construction of the Works are, so far as reasonably practicable;
(i) eliminated; or
(b) if paragraph (i) is not reasonably practicable, minimised; and
(c) give to the Contractor a written report specifying the design hazards so far as the Subcontractor is reasonably aware which create a risk to the health and safety of persons who are carrying out construction of the whole or any part of the Works.

8. SAFETY REQUIREMENTS

8.1 The Supplier shall comply with all relevant safety standards applicable to the Supplies;
8.2 Where the Goods supplied is the supply, erection and dismantling of scaffolding, the Supplier shall:
(a) Develop a scaffold plan by a qualified person (signed-off by a scaffold engineer) and any changes to the scaffold plan installation design are authorised and signed off by a qualified person, ensuring that the scaffold installation, modification (if required) and dismantling in accordance with AS/NZS 4576;
(b) Have appropriate high-risk work licenses for the class of scaffold erected.

9. HEAVY VEHICLES

9.1 To the extent heavy vehicles (as defined in COR Laws) are used in carrying out the Supplies, the Supplier:
(a) Acknowledges that it is a primary duty holder under the COR Laws with responsibility for developing COR Systems;
(b) Must ensure that any heavy vehicles are appropriately maintained with loads that do not exceed vehicle mass or dimension limits, are appropriately secured, and operators carrying freight containers have a complying Container Weight Declaration (as defined in the COR Laws) and drivers do not exceed speed limits or regulated driving hours, do not drive while impaired by fatigue and observe minimum rest requirements;
(c) Must proactively provide reasonable assistance to The Purchaser to enable The Purchaser to satisfy its duties and responsibilities under COR Laws;
(d) Must obtain and maintain, and ensure that each of its personnel and suppliers obtains and maintains all approvals required to enable the applicable activity, function or task to be undertaken lawfully;
(e) Must undertake any audits or monitoring as requested by The Purchaser to demonstrate compliance with this clause; and
(f) Warrants that it is familiar with and has the capability and resources to comply with COR Laws and ensure that its personnel and Suppliers comply with all COR Laws.

10. OWNERSHIP AND RISK

10.1 Ownership of, and unencumbered title in, the Supplies shall pass to the Purchaser on the earlier of:
(a) delivery; or
(b) the date of payment for the Supplies.
10.2 The Supplier shall be responsible for the care of the Supplies until the date that risk passes in accordance with clause 10.4.
10.3 If loss or damage occurs to the Supplies while the Supplier is responsible for their care, the Supplier shall, at its cost, promptly rectify such loss or damage.
10.4 Risk in the Supplies shall pass to the Purchaser on delivery.
10.5 The Supplier grants to the Purchaser an irrevocable licence to enter the Supplier’s premises to remove all Goods for which ownership has passed to the Purchaser. To the extent permitted by law, the Supplier indemnifies the Purchaser against all claims arising out of or in connection with the Purchaser’s exercise of the licence granted under this clause.

11. PAYMENT

11.1 The Supplier shall be entitled to claim payment on delivery, progressively monthly based on such Goods delivered, Services provided or Works completed to the end of each month or as agreed in writing with the Purchaser.
11.2 Each claim must state the Purchase Order number.
11.3 Subject to clauses 11.5, 11.6 and 11.7, provided that the payment claim complies with this clause, the Purchaser shall pay the amount assessed as payable to the Supplier within the latter of 25 Business Days of receipt of the payment claim or 30 days EOM whichever the case may be.
11.4 Any amount assessed as owing by the Supplier to the Purchaser shall be paid by the Supplier to the Purchaser within 10 Business Days of the date of the claim for payment by the Supplier.
11.5 Payment by the Purchaser of any claim shall be a payment on account only and shall not constitute evidence that the Supplies have been carried out satisfactorily.
11.6 The Purchaser may deduct from any payment otherwise due to the Supplier:
(a) any debt or other amount due from the Supplier to the Purchaser under this Agreement, under another agreement, or at law; or
(b) any claim to payment which the Purchaser may have against the Supplier whether for damages or otherwise, under this Agreement, under another agreement, or at law.
11.7 Despite any other provision of this Agreement, the Supplier shall not be entitled to make a claim for any payment until the Supplier has provided to the Purchaser:
(a) evidence of the Supplier having effected all insurances required to be effected by it under this Agreement; and
(b) documentary evidence (satisfactory to the Purchaser) that all the Supplier’s employees, sub-suppliers and sub-Supplier’s employees have been paid for all work, services, plant, goods and materials provided by them in connection with the carrying out of the Supplies at the relevant award or rate specified in any applicable industrial agreement.

12. DEFECTS

12.1 Without limiting the Purchaser’s rights under this Agreement or otherwise, if at any time the Purchaser discovers that the Supplies or any part thereof are not in accordance with this Agreement, the Purchaser may:
(a) direct the Supplier to, at its cost, perform any necessary redesign, repair or replacement of the defective parts of the Goods, re-perform the Services or Works, or take any other steps necessary to ensure that the Supplies comply with the requirements of this Agreement, within the time specified; or
(b) reject the Supplies or part thereof, by giving written notice to the Supplier.
12.2 The Supplier will bear all costs associated with the return, replacement and/or rectification of the Goods, Services and/or Works.
12.3 If the Supplier fails to comply with a direction under clause 12.1(a) within the required timeframe, The Purchaser may take the necessary steps to ensure that the Supplies comply with the requirements of this Agreement (including engaging third parties to undertake the necessary steps) and its costs incurred will be a debt due and owing by the Supplier.

13. INDEMNITY

13.1 The Supplier indemnifies the Purchaser against damages, losses and other liabilities of any kind howsoever caused against the Purchaser, arising directly or indirectly, in respect of:
(a) loss or damage to property, including existing property on or around the Site including property belonging to third parties;
(b) personal injury, death, or loss or damage to any property; and
(c) any infringement of any intellectual property or moral rights; and
(d) a breach of any warranty or any of the other terms and conditions of the Purchase Order, arising out of or in connection with carrying out the Supplies.
13.2 The Purchaser may recover any amount indemnified under this clause as a debt.
13.3 This clause survives the termination of this agreement.

14. INSURANCE

14.1 The Supplier shall effect and maintain the following insurance policies, with a reputable insurance company:
(a) public and products liability insurance in the amount of $20 million for any one loss or occurrence, for the duration of this Agreement;
(i) insurance to cover physical loss or damage to the Supplies, including loss or damage during transit or unloading. The policy or policies shall be maintained until risk in the Supplies passes to The Purchaser or the Supplier otherwise ceases to be responsible for the care of the Supplies;
(ii) workers compensation or personal accident and illness insurance as required by law; and
(iii) any other insurance reasonably required by the Purchaser including professional indemnity insurance of $5 million where the Services provided include design.
14.2 The insurances in clause 14.1 shall be on such terms (including deducible levels) as would otherwise be procured and maintained by a prudent supplier acting in accordance with best industry.
14.3 The Supplier shall, within 3 Business Days of the Purchaser’s request, give evidence of insurance required to be effected and maintained.
14.4 If the Supplier fails to obtain the insurances in accordance with clause 14, then without prejudice to any other rights or remedies The Purchaser may have, the Purchaser may insure and the cost thereof shall be a debt due and payable by the Supplier to the Purchaser.

15. DEFAULT

15.1 If the Supplier commits a breach of this Agreement, the Purchaser may issue a notice to the Supplier requiring the Supplier to show cause why the Purchaser should not terminate this Agreement.
15.2 If the Supplier fails to show reasonable cause within the period stipulated in The Purchaser’s notice to show cause, the Purchaser may, by further notice, terminate this Agreement.

16. TERMINATION FOR CONVENIENCE

16.1 Without prejudice to any of the Purchaser’s other rights under this Agreement, The Purchaser may:
(a) at any time and for any reason, by written notice to the Supplier, terminate this Agreement; and
(b) either itself or by a third party complete the uncompleted part of the work under this Agreement,
(c) and the Supplier is entitled to claim for the cost of Goods delivered and/or Services and/or Works performed up to that date but is not entitled to any payment for loss of profit on the Supplies that have not been delivered and/or performed at the time of termination of this Agreement.
16.2 On payment under clause 16.1, title in property, material, parts and/or incomplete Goods and/or Services and/or Works will pass to the Purchaser and the Supplier must, upon demand and at your cost, deliver to the Purchaser any such property, material, parts and/or incomplete Goods and/or Services and/or Works.

17. INSOLVENCY

17.1 If the Supplier:
(a) is insolvent or financially unable to proceed with this Agreement;
(b) being a person, commits an act of bankruptcy, is made bankrupt, has a bankruptcy petition presented against it, or makes an assignment of its estate for the benefit of its creditors; or
(c) being a company, becomes insolvent, has a liquidator, provisional liquidator, administrator or receiver appointed, has a change in ownership or control, takes or has taken or instituted against it any action which may result in the liquidation of the company, or if it enters into any agreement with its creditors,
The Purchaser may, without issuing a notice to show cause, terminate this Agreement by written notice.

18. WORK HEALTH AND SAFETY

18.1 The Supplier shall:
(a) ensure compliance with all laws and legal requirements relating to workplace health and safety; and
(b) comply with all reasonable directions of the Purchaser with respect to workplace health and safety and ensure nothing done by the Supplier places the Purchaser in breach of its obligations under all laws and legal requirements.

19. LICENCE

19.1 The Supplier shall not carry out any Supplies which require a licence unless it holds the proper licence permitting the Supplier to lawfully carry out those Supplies.
19.2 If the Supplier is unable to carry out Supplies which requires a licence because it has failed, refused, or been unable to obtain a proper licence or has had its licence suspended or cancelled, or has had conditions imposed on its licence, then the Supplier shall be in substantial breach of this Agreement.

20. VARIATION

20.1 The Purchaser may direct the Supplier to vary the Supplies. The price of the variation shall be agreed by the parties or, if not agreed, as determined by the Purchaser.

21. BUILDING PRODUCTS LAWS

21.1 In this clause, the terms ‘Person in the Chain of Responsibility’, ‘Building Product’, ‘Minister’, ‘Non-conforming Building Product’ and Required Information’ each have the respective meanings given to those terms in the QBCC Act.
21.2 The Supplier acknowledges that, to the extent that the Supplier is a Person in the Chain of Responsibility, it has obligations under Part 6AA of the QBCC Act in relation to Non-conforming Building Products and:
(a) Warrants that no Building Product supplied are Non- conforming Building Product or the subject of a warning statement issued by the Minister;
(b) Must ensure that it has provided all required information for a Building Product to The Purchaser upon supply of the Building Product to the Purchaser;
(c) Must provide the Purchaser with copies of all notices (including warning statements) issued and received in relation to the Building products supplied pursuant to the QBCC Act within 48 hours of dispatch or receipt by the Supplier of the relevant notice;
(d) Agrees to provide all required information and any other information relevant to a Building Product to the Purchaser within the timeframes requested by The Purchaser; and
(e) Indemnifies and shall keep indemnified The Purchaser against all loss, costs, liabilities, claims, damages or expense caused or contributed to any breach of its obligations under this clause or by any failure of the Supplier to comply with its obligations under the QBCC Act in relation to Building Products.
21.3 If the Supplier supplies a Building Product without the required information, the Contractor will be entitled to do either of the following in its sole and absolute discretion:
21.4 Request the required information from the Supplier, in which case the Supplier will provide the required information as soon as reasonably practicable; or
21.5 Direct the Supplier to remove the Building Product and replaced with a Building Product that is not a Non-conforming Building Product.
21.6 The Supplier shall indemnify and shall keep indemnified the Purchaser against any cost, loss, expense, liability, claim, or damage suffered or incurred by the Purchaser due to a Building Product being supplied being recalled or identified as a Non-conforming Building Product.
21.7 For the avoidance of doubt, the indemnities contained in this clause survive the termination, cancellation, completion, expiration or otherwise merging of this Agreement.

22. MODERN SLAVERY LEGISLATION

22.1 The Supplier warrants that:
(a) It has not engaged in, and does not engage in, any activity, practice or conduct in its operations that would constitute a modern slavery offence under any law (including the Modern Slavery Act 2018 (Cth)) or otherwise contravene any laws or codes of practice in force from time to time in relation to modern slavery; and
(b) it will comply with, and take reasonable steps to ensure any secondary subcontractor complies with, mandatory reporting obligations in any laws or codes of practice in force from time to time in relation to modern slavery.

23. LABOUR HIRE LEGISLATION

23.1 Where the Service provided by the Supplier is labour hire services whether under the Labour Hire Legislation or otherwise, (“Labour Hirer”), the Labour Hirer warrants that:
(a) it shall affect and maintain any licence it is required to hold in relation to the procurement of labour hire services, including under the Labour Hire Legislation (if any);
(b) it has reviewed and retained a satisfactory, completed and signed fitness for duty declaration completed by any Labour Hirer’s employee as provided to the Purchaser;
(c) it shall have sufficiently identified the site-specific tasks as required by the Purchaser;
(d) it shall have prepared adequate, appropriate site-specific safe work method statements for all tasks as required by the Purchaser;
(e) it shall provide the Purchaser with such site-specific, task-specific safe work method statement duly reviewed, completed and signed by the Labour Hirer’s employee that is provided to the Purchaser;
(f) all Labour Hirer’s employees provided to the Purchaser:
(i) shall not be under the influence of drugs and/or alcohol while on the Site;
(ii) shall be suitably qualified and sufficiently fit for the duties and tasks as required to be carried out by the Purchaser;
(iii) shall have reviewed and signed and been inducted into appropriate site specific, task specific, safe work method statements as provided by the Labour Hirer for the tasks and duties as required to be carried out by the Purchaser.
23.2 Labour Hire Legislation means the following legislation as they are amended from time to time to the extent that it applies in the jurisdiction where the Site is located:
(a) Qld – Labour Hire Licensing Act 2017 (Qld);
(b) Vic - Labour Hire Licensing Act 2018 (Vic);
(c) SA – Labour Hire Licensing Act 2017 (SA);
23.3 The Labour Hirer indemnifies the Purchaser against any delay, damage, expense, loss, penalty or liability suffered or incurred by the Purchaser caused by or as a result of a breach of the provisions of these Purchase Order Conditions and any warranty given herein.
23.4 The Labour Hirer warrants that any safety incident, accident or event involving a Labour Hirer’s employee shall be notified to the Purchaser immediately and in any event within 24 hours.
23.5 The Labour Hirer indemnifies the Purchaser against any delay, damage, expense, loss, penalty or liability suffered or incurred by the Purchaser caused by or as a result of any failure by the Labour Hirer to notify the Purchaser of an incident, accident or event involving a Labour Hirer’s employee provided to the Purchaser.

24. GENERAL

24.1 The Supplier shall not assign this Agreement or any right, benefit or interest under this Agreement or subcontract any part of the Supplies without The Purchaser’s written approval.
24.2 Notwithstanding any other provision of this Agreement, The Purchaser shall not be liable upon any claim (other than a claim for payment of the Price under clause 2) unless a written notice of claim is given to The Purchaser within 5 Business Days after the date the Supplier ought reasonably have become aware of the facts or circumstances upon which the claim is based.
24.3 The laws of Queensland shall apply to this Agreement.
24.4 The Supplier shall continue to carry out the Supplies despite any dispute.

25. DEFINITIONS AND INTERPRETATION

25.1 In these Conditions, except to the extent that the context otherwise requires:
(a) “Agreement” means the agreement between the Purchaser and the Supplier set out in the Purchase Order and these Conditions;
(b) “Business Day” means any day which is not a weekend day or public holiday at the Site but for clause 11 only, does not include 22 to 24 December, 27 to 31 December and 2 to 10 January;
(c) “COR Laws” means laws relating to fatigue management, speed and mass, dimension and load compliance requirements generally referred to as “Chain of Responsibility” laws or “Heavy Vehicle” laws;
(d) “COR Systems” means policies, procedures, standards, training and systems designed to ensure, so far as is reasonably practicable, compliance in COR Laws;
(e) “Delivery Due Date” has the meaning in the Purchase Order, as adjusted in accordance with the Agreement;
(f) “Delivery Address” is the Site unless noted otherwise in the Purchase Order;
(g) “Design Services” means all tasks necessary to design and specify the Works as required by this Agreement, including the preparation of such drawings, specifications and other information required for the construction of the Works;
(h) “Goods” has the meaning in clause 2;
(i) “Price” means the total amount payable to the Supplier by the Purchaser as set out in the Purchase Order, or as adjusted under the terms of this Agreement;
(j) “Purchase Order” means the formal “Purchase Order” issued by The Purchaser to the Supplier for the Supplies which The Purchaser requires;
(k) “QBCC Act” means Queensland Building and Construction Commission Act 1991 (Qld);
(l) “Services” has the meaning in clause 2;
(m) “Site” means the site specified in the Purchase Order;
(n) “Purchaser” means a Boar Group Business – Fire Boar Pty Ltd. Training Boar Pty Ltd ABN 367 184 976 24 and Air Boar Pty Ltd. ABN 53 660 058 042 as identified in the Purchase Order;
(o) “Supplier” means the relevant party providing the Supplies as identified in the Purchase Order; and
(p) “Supplies” has the meaning in clause 2.