Purchasing

1 DEFINITIONS AND INTERPRETATION

1.1 In these Conditions, the following terms have the following meanings:

Background Intellectual Property: the Intellectual Property in existence at the time of the Order or subsequently brought into existence other than as a result of the performance of the Order and/or is embodied in, attaches to or is otherwise necessarily related to the functioning and/or operation of the Supplies.

Exact: Exact Contracting Pty Ltd t/as Exact Contracting ABN 24 607 096 515 and/or a Related Entity (as defined in the Corporations Act 2001 (Cth)) of Exact.

GST: the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property: all registered and unregistered intellectual property rights, including copyright, patents, trademarks, designs, trade secrets, know-how, layout, data, invention, product, work, discovery, process, word, phrase, symbol, design, application or other thing capable of protection and the right to have confidential information kept confidential.

Latent Defects: a deficiency in design, materials or workmanship not discoverable prior to or on delivery, which causes the Supplies to function incorrectly.

Purchase Order: this purchase order and these conditions, including all information provided by Exact to the Supplier supplementary to the Order and any variation in writing agreed to by the parties.

Proprietary Information: all information, documents, data, materials, electromagnetic reproductions, samples and/or models in whatever form, whether or not produced under this Order, disclosed or to be disclosed by Exact to the Supplier pursuant to this Order, including, but not limited to, pictures, plans, specifications, blueprints, performance details and requirements, subassembly and assembly drawings, costs, lists, instructions, reports, know-how, trade secrets, manufacturing data, software, models and intellectual or industrial property.

Price: the price to be paid to the Supplier by Exact for the Supplies as noted on the Order.

Supplier: the person, partnership, joint venture, firm, company, government or entity described on the face of the Order supplying the Supplies, including their personal representatives, successors and permitted assigns.

Supplies: all goods, services, articles, products, materials, items, parts, components, assemblies, tools, information (including all information required from the Supplier under the Order relating to the Supplies and their installation, use, operation and maintenance) or any other item(s) described on the face of the Order including raw materials, incomplete or unfinished items, and spare parts.

1.2 In these Conditions, unless otherwise stated or the context otherwise requires:

(a) references to a person include an individual, firm, partnership, company or unincorporated body;

(b) references to any legislation or to any part of any legislation include any:
(i) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; and
(ii) ordinances, by-laws, regulations and other statutory instruments issued under that legislation, section or provision; and

(c) the words “including”, “includes” and similar words are not words of limitation.

2 APPLICATION AND SPECIAL CONDITIONS

2.1 These conditions apply to all Orders placed by Exact whether relating to a purchase or purchases, the hire of goods or provision of services.

2.2 The Order contains the entire agreement of the parties in relation to its subject matter and can only be varied in writing signed by all parties.

2.3 If any special conditions are provided with this agreement or any Order, the Supplier acknowledges and agrees that it is bound by those special conditions and that they take precedence to the extent of any inconsistency with these terms.

3 ORDERING

3.1 Any provision of Supplies must be the subject of an Order issued by Exact.

3.2 The Supplier accepts the Order by acknowledging acceptance via email to purchasing@exactcontracting.com.au.

3.3 By accepting the Order, the Supplier acknowledges that it has received all information required to fulfil its obligations under the Order. Any additional information must be requested before acceptance of the Order.

4 PACKAGING

4.1 Packaging must conform to the specifications in the Order and instructions given by Exact and usual industry practice and other applicable laws and requirements.

4.2 All packaging must also prevent damage or deterioration of the Supplies in the course of loading, transit and unloading.

4.3 Packing and delivery slips or advice notes shall accompany all deliveries of the Supplies and are to include the Order’s reference number.

4.4 If Exact provides a written request for inspection of the Supplies prior to delivery, the Supplies are not to be dispatched from the Supplier’s premises before an approved inspection is carried out and an inspection certificate evidencing such inspection is to be attached to the Supplies on delivery.

5 DELIVERY, RISK AND PROPERTY

5.1 The Supplier will deliver the Supplies during normal business hours on or prior to the expected date and at the delivery address specified in the Order with receipt to be acknowledged by an authorised representative of Exact.

5.2 The delivery time is of the essence of the performance of the Supplier’s obligations under the Order. The Supplier must give written notice to Exact as soon as it becomes aware of any delay or potential delay regarding the delivery of the Supplies.

5.3 The Supplier agrees to take all necessary steps to avoid or reduce any delivery delay.

5.4 Ownership and risk in the Supplies passes to Exact upon completion of delivery to Exact. Delivery of the Supplies is completed when the Supplies are in the place nominated by Exact on the Order or in writing as the place of delivery and a person authorised by Exact has signed a delivery docket acknowledging receipt of the Supplies in satisfactory condition.

5.5 Exact is entitled to reject the Supplies if any defect is detected or the Supplies are delivered in error or more than the quantity ordered.

5.6 If a deposit is paid by Exact to the Supplier, then the Supplier commits to fulfilling their obligation until realisation of the order. Risk and maintaining of insurance remain with the Supplier until delivery and acceptance by Exact. PURCHASE ORDER TERMS Exact Contracting Purchase Order Terms

5.7 Delivery of the Supplies is to be in accordance with the Order and at the time nominated by Exact. Exact may at any time amend the times and/or manner of delivery of the Supplies.

5.8 No later than 7 days prior to the delivery of the Supplies, the Supplier shall advise Exact of any maintenance requirements and special conditions for the Supplies.

5.9 Supplies delivered subject to shelf life must have a substantial amount of shelf life remaining upon delivery. The remaining shelf life must be sufficient for Exact’s purposes.

5.10 On rejection of any Supplies, Exact may return the Supplies to the Supplier at the Supplier’s expense

6 PRICES, INVOICING AND PAYMENT TERMS

6.1 Unless otherwise stated in the Order the Price is fixed, not subject to rise and fall and is inclusive of packaging, insurance, delivery and GST costs.

6.2 Payment is conditional on the Supplier providing a tax invoice to Exact with the Order number and project details to be included in the tax invoice.

6.3 Invoices are payable at the end of the month following the month in which a correctly rendered invoice is received.

6.4 Invoices are to be issued to the Exact address appearing in the Order and are to include the corresponding Order reference number and suitably identify the Supplies.

6.5 Exact reserves the right to query any invoice presented by the Supplier that requires correction of any error, even if the invoice relates to a previous payment or specifies a time limit for raising queries. Any payment made by Exact will be payment on account only.

6.6 Despite any other provision in the Order, Exact reserves the right to deduct or set-off amounts owed by the Supplier to Exact from moneys due by Exact to the Supplier.

7 WARRANTIES

7.1 In addition to any warranties made under statute, at common law or by any third party manufacturer or supplier, for 24 months from the date of delivery of the Supplies and for a further 24 months in the case of Latent Defects, the Supplier warrants that notwithstanding any inspection or acceptance by Exact and any delivery of the Supplies, the Supplies:

(a) are of merchantable quality;
(b) are delivered with due care and skill;
(c) conform to the requirements of the Order, including any technical or operational requirements advised by Exact;
(d) are fit for the purposes for which Exact proposes to use the Supplies;
(e) carry all manufacturer’s or supplier’s warranties;
(f) are free from all defects and deficiencies whether in design, performance, materials or workmanship;
(g) correspond to any samples supplied by the Supplier to Exact; and
(h) comply with all statutory, regulatory or general industry requirements and expectations in respect of them and as directed by Exact from time to time or other legal requirements.

7.2 For the purposes of this clause, the Supplier is deemed to know the purposes for which Exact proposes to use the Supplies and acknowledges that Exact is relying on the Supplier’s judgment and representations that:

(a) the Supplies are fit for those purposes;
(b) the Supplies, their design, construction, ingredients, quality and packaging comply with all relevant requirements, regulations and laws in force at the places of manufacture, shipment and delivery;
(c) 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 Exact in which the supplies are incorporated;
(d) the Supplies do not infringe the Intellectual Property rights of any person or third party; and
(e) none of the Supplier, its subcontractors or any other person has a lien, mortgage, charge or other security interest of any type in or over any of the Supplies, such that Exact will obtain unencumbered title and rights of use in them.

7.3 The Supplier is to, without delay and at Supplier’s risk and expense, repair, replace or re-perform (as appropriate) non-conforming Supplies. The Supplier is to replace any defective parts with new Supplies or parts if any breach Clause 7.1 occurs.

7.4 If the Supplier fails to rectify a defect or non-conformance (including any Latent Defect) in the Supplies within the time specified by Exact, Exact may, without limiting the Supplier’s warranties and obligations under this Order, cause such defect or non-conformance to be rectified and recover the associated costs from the Supplier.

7.5 The rights and remedies provided in this Clause 7 are in addition to and do not limit any of Exact’s other rights under or incidental to this Order.

8 INTELLECTUAL PROPERTY RIGHTS

8.1 Ownership in all Intellectual Property specifically created for the provision of the Supplies to Exact under this Order vests in Exact. If such rights cannot automatically vest in Exact, the Supplier undertakes to do all things required by Exact to transfer such rights to Exact.

8.2 Ownership of all Background Intellectual Property incorporated in the Supplies remains unchanged. The Supplier irrevocably and unconditionally grants to Exact, a royalty-free, non-exclusive, worldwide, perpetual licence to use any Background Intellectual Property (including the right to sublicence) to the extent that it forms part of or is integral to the Supplies or other items created by the Supplier in relation to the provision of the Supplies in connection with the Order.

9 INDEMNITY

9.1 The Supplier indemnifies and holds harmless Exact in respect of all actions, suits, proceedings, claims, demands, losses, costs, charges and expenses (including any indirect, incidental, special or consequential loss, any loss of revenue, loss of profits, loss of business opportunities, loss of anticipated savings, damage to goodwill and damage to reputation) and also including the cost of settling any pending or threatened proceedings, including legal expenses on a solicitor and own client basis arising from or incurred by reason of any:

(a) breach of the Order or negligence by the Supplier;
(b) loss or damage to property or injury or death to persons caused or contributed to directly or indirectly by the Supplier in connection with the Order or the Supplies;
(c) actual or alleged infringement or breach of any Intellectual Property anywhere in the world arising out of or resulting from the sale or use of the Supplies or their incorporation in other things; or
(d) claim made against Exact by any third party arising directly or indirectly from or as a result of the Supplier’s failure to deliver the Supplies in accordance with the requirements of the Order.

10 CONFIDENTIALITY/PUBLICITY

10.1 For 10 years from the date of this Order, the Supplier covenants that the Proprietary Information:

(a) subject to clause 10.1(d), must not, without the prior written consent of Exact, be disclosed, revealed, copied, published, reproduced, or in any way used for any purpose other than performing the Supplier’s obligations under this Order;
(b) will be kept protected, in a secure place and in strict confidence;
(c) will, on request by Exact, at any time, be returned to Exact, or destroyed in the manner requested by Exact. Return or destruction will extend to any copies of the material in question and any records containing references to the Proprietary Information; and
(d) will not be disclosed nor caused to be disclosed directly or indirectly to any third party, except to the Supplier’s employees and subcontractors who have a need to know for the purpose of fulfilling its obligations under this Order, provided that the Supplier informs such employees and/or subcontractors of the confidential nature of the Proprietary Information and uses all reasonable endeavours to prevent such employees and/or subcontractors from using or disclosing Proprietary Information for other purposes.

10.2 The Supplier is not to, in any manner, reveal, advertise or publish the fact that it has contracted with Exact or any details in relation to the Order.

10.3 The expiry or termination of this Order or the delivery of the Supplies does not relieve the Supplier or its employees, representatives and subcontractors from complying with the obligations imposed with respect to the use and protection of the Proprietary Information.

11 INSURANCE

11.1 The Supplier will effect and maintain at its cost any policies of insurance specified in the Order and in any event, sufficient insurance to cover its liabilities in connection with the Order.

11.2 The Supplier undertakes to insure and keep insured at all times the Supplies for their full replacement value with a reputable insurer and provide Exact, with a copy of the relevant Certificate of Currency upon request.

11.3 Should the Supplier be required to enter Exact’s premises or worksites to carry out any work related to this Order, the Supplier must effect and maintain at its cost adequate workers’ compensation insurance with a principal’s indemnity extension (where applicable in the relevant jurisdiction) and public liability insurance (for at least $10M) to cover its liabilities in connection with the Order.

12 DELAY AND TERMINATION

12.1 The Supplier must give written notice to Exact of any delay in delivery beyond the control of the Supplier detailing the cause of the delay and time when the Supplier can make delivery.

12.2 Exact may grant the Supplier a reasonable extension of time provided that Exact may at any time terminate the Order if Exact is relying on the delivery of the Goods and is able to source the Supplies elsewhere.

12.3 The Supplier will comply with any written instructions, issued by Exact at any time prior to delivery of the Supplies, to delete, add, alter or otherwise vary the Order.

12.4 Without prejudice to any other rights or remedy, Exact may terminate the Order immediately without incurring any liability to the Supplier if:

(a) the Supplies, or any portion of the Supplies, are not delivered within the time or times nominated by Exact;
(b) there is any breach of the Order; or
(c) the Supplier becomes insolvent, bankrupt, goes into administration, receivership or liquidation, is made subject to any petition or proceedings taken for the Supplier’s compulsory winding up, is made subject to the supervision of a court, enters into a scheme or arrangement with its creditors or becomes the subject of any order or proceedings relating to its solvency or Exact otherwise has reason to believe that that the Supplier does not have the financial capacity to meet its obligations under the Order.

12.5 On termination, Exact may:

(a) refuse to accept any undelivered Supplies;
(b) at the Supplier’s risk and expense, return to the Supplier any of the delivered Supplies which cannot be used without the undelivered Supplies. In such an event, the Supplier indemnifies Exact for any moneys paid in respect of the returned Supplies;
(c) enter into any premises and take away all finished and unfinished Supplies, materials and things in which Exact has property and recover all moneys paid by Exact in respect of those Supplies; or
(d) institute proceedings, including but not limited to, claiming compensation by way of damages in respect of any loss or damage suffered or sustained directly or indirectly by Exact including consequential loss and loss of profits.

12.6 The termination of this agreement or an Order does not affect Exact’s accrued and ongoing entitlements under or in connection with this agreement or an Order.

13 HEALTH, SAFETY, SECURITY AND ENVIRONMENT

13.1 The Supplier, in the performance of its obligations in relation to this Order must:

(a) comply with all applicable health, safety and environmental obligations in force in the State, Territory or other jurisdictions in which the Order, or a part of the Order, is, or is to be, carried out; and
(b) comply and ensure that its employees, representatives and subcontractors comply with all Exact health, safety, environmental and site security policies.

14 GOVERNING LAW

14.1 This Order is governed by the laws of the State of South Australia and the parties submit to the exclusive jurisdiction of the Courts of the State of South Australia.

15 OPERATION OF PROPORTIONATE LIABILITY LEGISLATION

15.1 If any legislation that apportions liability for apportionable claims between concurrent wrongdoers applies to the Supplier’s liability under or in connection with this agreement or an Order, to the extent permitted by law, that legislation is excluded and does not apply.

15.2 The Supplier acknowledges that this clause constitutes a special limitation for the purposes of any applicable proportionate liability legislation.

16 GENERAL

16.1 Exact and the Supplier have not entered into the Order based on any representation by the other or any party acting on their behalf, other than representations expressly stated in the Order. PURCHASE ORDER TERMS Exact Contracting Purchase Order Terms

16.2 Any Order supersedes any previous negotiations and constitutes an offer to purchase the Supplies on the terms and conditions specified in the Order not an acceptance of any offer by the Supplier to sell the Supplies.

16.3 Unless otherwise notified by the Supplier, the Order will lapse after a period of 3 months.

16.4 The parties acknowledge and agree that the Order constitutes a valid and binding agreement upon them in accordance with its terms, which have been entered into at arm’s length and are reasonable and commercial in all circumstances.

16.5 If, notwithstanding clause 16.4:

(a) any provision of the Order is prohibited or unenforceable in any jurisdiction, it is ineffective in that jurisdiction only and only to the extent of that prohibition or unenforceability;

(b) any provision of the Order is unenforceable in any jurisdiction, it does not affect the enforceability of that provision in any other jurisdiction or the enforceability of the remaining provisions in any jurisdiction; or

(c) any provision of the Order is void, or unenforceable:
(i) if the provision would not be void or unenforceable if a word or words were severed, that word or those words are severed to the maximum extent possible to give effect to the unamended provision; or
(ii) in any other case, the whole provision is severed and the remainder of the Order shall remain in full force and effect.

16.6 The Supplier may not subcontract, transfer, assign, hold in trust, or otherwise dispose of any of its rights, obligations or interests under this Order without Exact’s ’s prior written consent.

16.7 If Exact provides equipment and/or tools to the Supplier, these remain the property of Exact and are not to be modified, altered, destroyed, damaged or used for any purposes other than for the fulfilment of the Order. The Supplier is responsible for their safe custody and proper maintenance while in its custody.

16.8 None of the provisions of the Order shall be varied, waived, discharged or released, except with the prior written consent of Exact through its authorised representative.

16.9 Without limiting clause 16.8:

(a) no failure or delay by Exact in exercising any right or remedy under the Order shall operate as a waiver of it;

(b) no single or partial exercise by Exact of any right or remedy under the Order shall preclude any other or further exercise of it; and

(c) no waiver or relaxation by Exact of any right or remedy on any particular occasion shall operate as a waiver or relaxation of it on any other occasion.

16.10 Any dispute which remains unresolved after discussion between both parties must be referred to mediation. The mediator and the mediation process will be agreed upon by both parties.

16.11 Notwithstanding the existence of a dispute, the Supplier must continue to perform its obligations under these terms and conditions.

16.12 If Exact determines that any Supplies are no longer required for any reason, are excess to Exact’s requirements or Exact is overstocked with Supplies supplied by the Supplier on a regular basis, Exact may return such excess Supplies to the Supplier and the Supplier will credit Exact’s account the invoiced cost of such Supplies, provided that:

(a) Exact pays the cost of return freight; and

(b) the Supplies are unmarked and returned in original packaging.

16.13 A notice (and other documents) under the Order shall be deemed to have been given and received:

(a) if they are addressed and delivered to the address stated in the Order or last communicated in writing to the person giving the notice; and

(b) on the earliest date of:
(i) actual receipt by hand delivery or email;
(ii) the date and time shown in a confirmation of correct transmission by facsimile; or
(iii) 5 days after posting.