A. Quotation & Sale
All references in this document to the “Seller” shall include Starwater Group Ltd and/or any subsidiary or affiliate of Starwater Group Ltd (including any division, subsidiary, related entity or parent of the foregoing) performing any or all of the scope hereunder, whether or not specifically identified herein. Applicant (hereinafter the “Purchaser”) further agrees that the following terms and conditions will apply to all sales of goods or services by the Seller.
All matters between the Seller and the Purchaser, including venue, will be governed by the laws of the state in which the delivery of goods or services by the Seller to the Purchaser is to occur. All indebtedness due is payable at the Seller’s office identified in the invoice or billing for such payment, unless and until the Seller designates a different place of payment. Invoices shall be deemed correct unless contested in writing within seven (7) business days of receipt. Recovery action on payment matters are governed by the laws in the state of the Seller’s office identified in the invoice or billing for such payment.
The Purchaser agrees that any terms and conditions appearing on any document submitted by the Purchaser which are in conflict with:
(i) the terms and conditions contained herein,
(ii) any quotation submitted by the Seller, or
(iii) any sales contract between the Seller and the Purchaser
shall be hereby expressly rejected and shall not constitute terms of any sale of goods or services by the Seller. The foregoing shall apply to all documents heretofore or hereafter submitted by the Purchaser, whether executed by the Seller or not.
Prices in quotations made by the Seller are subject to change without notice, and all quotations expire and become invalid if not accepted within 30 days from the date of issue, unless otherwise noted by the Seller in writing. Price extensions when made are for the Purchaser’s convenience only, and they, as well as any mathematical, stenographic or clerical errors, are not binding on the Seller. Prices shown may not include any sales, excise, or other governmental tax or charge payable by the Seller to Federal, State or local authority. Any taxes such as General Sales Tax (GST) now or hereafter imposed upon sales of shipments will be added to the purchase price. The Purchaser agrees to reimburse the Seller for any such tax or to provide the Seller with an acceptable and authorized tax invoice.
Any order for goods or services by the Purchaser shall constitute a representation that the Purchaser is solvent. In addition to the Seller’s statutory rights, if in the judgment of the Seller, the financial condition of the Purchaser at the time of shipment does not justify the terms of payment specified, the Seller reserves the right to require from the Purchaser full or partial cash payment or other adequate assurance of performance before shipment. The Seller reserves the right to suspend its performance until such payment or adequate assurance of performance has been received. The Purchaser agrees that all funds owed to the Purchaser from anyone or received by the Purchaser to the extent those funds result from the materials supplied by the Seller shall be held in trust for the benefit of the Seller (the Trust Funds). The Purchaser agrees it has no interest in the Trust Funds held by anyone and to promptly account for and pay to the Seller all such Trust Funds. The Seller maintains the right to periodically review and adapt payment terms as necessary and to curtail, modify or eliminate any credit availability or credit limit within its sole discretion.
The Purchaser agrees to pay the Seller all costs and expenses of collection, suit, or other legal action, including all actual attorneys’ and paralegal fees, incurred through trial, on appeal, or in any administrative proceedings brought as a result of the commercial relationship between them. Any course of action which the Seller may have against the Purchaser may be assigned by the Seller. Unless otherwise stated on the invoice or other writing from the Seller, payment terms are Net 14days from date of invoice. Payment is due in the form of cash, cash equivalent, cheque, money order or electronic funds transfer.
The Seller may apply the Purchasers’ payment against any open charges within the Seller’s sole discretion. On past due accounts the Seller may impose a monthly finance charge to the higher of one and one half (1.5) percent per month or the maximum interest charge permitted to be charged by the law governing the account between the Purchaser and the Seller. The finance charge stated herein shall continue to accrue after the Seller obtains a judgment against the Purchaser. The Seller has the right to exercise setoff or recoupment when needed to satisfy an outstanding debt. All agreements between the Seller and the Purchaser (and any affiliate or subsidiary or the Purchaser) shall be considered as one single integrated agreement between the Seller and the Purchaser.
The Purchaser agrees to pay reasonable storage fees if materials are stored on the Seller’s or nominees yard more than sixty (60) days after the Seller is ready for delivery.
The Seller will not be responsible for delays in production or delivery for any reason resulting from fire, flood, force majeure, strikes, lockouts, differences with workers, accidents, war, insurrection, delays in transportation, equipment failure, shortage of cars, trucks, fuel or materials, governmental interference or regulation, acts of God or for any other reason beyond the Seller’s reasonable control. The Seller reserves the right to adjust prices due to delays, shortage, or increased costs of materials or transportation.
THE FOLLOWING IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER OBLIGATION ON THE PART OF THE SELLER.
The Seller warrants that at the time of delivery, the quality of materials and workmanship of the Seller’s goods or services will conform to the requirements of the specifications set forth in the applicable sales contract(s), quotation, or to the Seller’s standard manufacturing practice.
If the goods or services furnished by the Seller fail to conform, at time of delivery, to the Seller’s warranty, the Seller’s sole and exclusive liability will be to repair or replace (at the Seller’s discretion), f.o.b. the Seller’s plant plus full freight charges allowed to the jobsite, or upon mutual agreement to credit the Purchaser’s account. If repair or replacement is made, the Seller will have a reasonable time to make such repair or replacement. Notice of defective goods or services must be given to the Seller immediately upon discovery of the defect, notwithstanding the foregoing, final notice of any defect must be given within thirty (30) days from the date of delivery of such goods or services. The Seller’s liability, whether under contract, in tort or otherwise shall not in any event exceed the price of the goods or services or portion of such goods or services on which such liability is based, and the Purchaser waives any claim for an amount in excess of that amount.
IN NO EVENT SHALL THE SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING OR USE OF THE GOODS OR SERVICES OR FROM ANY OTHER CAUSE OR BREACH INCLUDING, BUT NOT LIMITED TO BREACH OF WARRANTY OR NEGLIGENCE.
No legal action shall be brought by the Purchaser against the Seller for any claim with respect to any goods or services sold by the Seller to the Purchaser more than one (1) year after delivery of such goods or services to the Purchaser. It is agreed that any cause of action with respect to such goods or services will accrue on the date of delivery of such goods or services. If any provision hereof is held by any court of competent jurisdiction to be illegal, void, or unenforceable, such provision will be of no force and effect, but the legality or unenforceability will have no effect upon and will not impair the enforceability of any other provision of this document.
A counterpart of this document delivered by facsimile or electronic transmission shall be deemed an original document and be valid for all purposes. If the Seller electronically stores this document a reproduction from the scanned document shall be considered to be an original counterpart and shall be enforceable.
THE PURCHASER AND THE SELLER AGREE AND INTEND THAT THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS DOCUMENT AND THAT THE PURCHASER AND THE SELLER ARE THE SOLE INTENDED BENERFICIARIES OF THIS DOCUMENT.
All references in this document to the “Purchaser” shall include Starwater Group Ltd and/or any subsidiary, nominee or affiliate of Starwater Group Ltd (including any division, subsidiary, related entity or parent of the foregoing) performing any or all of the scope hereunder, whether or not specifically identified herein.
The “Supplier” agrees that the following terms and conditions will apply to all sales of goods or services by the seller irrespective of the existence of, and in addition to, any other agreement.
2. Supply of goods (if applicable)
2.1 For Goods being supplied, including under the Standard Goods and Services Agreement, then the Supplier must;
(a) manufacture the goods as instructed;
(b) supply the Goods in accordance with this Agreement;
(c) sell the Goods without encumbrance;
(d) deliver the Goods to the Delivery Point on or before the Delivery Date;
(e) comply with the Purchaser’s reasonable directions and delivery instructions;
(f) if requested by the Purchaser, provide the Purchaser with material safety data sheets and any requirements stated in the Standard Goods and Services Agreement with respect to the Goods delivered;
(g) provide test evidence and proof of delivery for the Goods if required; and
(h) if applicable install the Goods on or before the Installation Date.
2.2 If the Supplier cannot comply with any of its obligations under clause 2.1, the Supplier must notify the Purchaser in writing immediately.
3. Inspection and acceptance of goods (if applicable)
3.1 The Purchaser may inspect the Goods to determine whether to accept or reject the Goods.
3.2 The Purchaser must accept the Goods if they conform to the requirements of this Agreement.
3.3 Subject to clause 3.4, the Goods are deemed to be accepted either:
(a) on delivery, if the Purchaser notifies the Supplier that it accepts the goods; or
(b) if no notice is issued by the Purchaser, then 5 Business Days after delivery of the Goods to the Delivery Point.
3.4 If the Goods are not used immediately and the Goods are found to be defective when first used, then the Purchaser may reject the Goods under clause 3.5.
3.5 If the Purchaser rejects the Goods due to non-conformity with the requirements of this Agreement, then the Purchaser must notify the Supplier as soon as possible and require the Supplier at its sole cost, and at the Purchaser’s election to either:
(a) resupply the Goods and remove the non-conforming Goods from the Delivery Point; or
(b) repair the Goods.
3.6 Acceptance of the Goods does not relieve the Supplier of any of its obligations under this Agreement.
3.7 The Supplier bears the risk in the Goods until delivery to the Delivery Point. Title in the Goods will pass to the Purchaser upon the Purchaser’s acceptance of the Goods.
4. Warranty period (if applicable)
4.1 If during the Warranty Period, the Goods fail to comply with the warranties in clause 8.1 then the Purchaser may in its absolute discretion require that the Supplier at its expense:
(a) replace the Goods within 10 Business Days of notification by the Purchaser (or such other time as is agreed); or
(b) refund the Price.
5. Samples, reports and manuals (if applicable)
The Supplier must provide samples, reports, manuals or other materials when requested.
6. Supply of services not goods (if applicable)
6.1 If Services and not goods are being supplied under this Agreement then the Supplier must ensure that the Supplier’s Personnel provide the Services described in Attachment 1 in accordance with the terms and conditions of this Agreement.
6.2 Where Attachment 1 specifies Named Persons then the Services must be delivered by those Named Persons.
(a) The Supplier may substitute a Named Person with the consent of the Purchaser subject to the Purchaser being satisfied as to the expertise, experience and suitability of the substitute.
6.3 The Supplier must ensure that Services are delivered:
(a) to a standard that meets or exceeds the Service Levels;
(b) in accordance with the warranties in clause 8.4; and
(c) by any Milestone Dates.
6.4 The Purchaser’s remedies for the Supplier’s failure to meet a Service Level or for a breach of a warranty, includes resupply of the Services, a reduction of the price, termination, rebates or any other remedy specified in the Special Conditions.
7. Service variation (if applicable)
7.1 If the Purchaser wishes to vary the scope of the Services (“Variation”), it must issue a written request to the Supplier and the Supplier must within 5 Business Days (or such other period as agreed) provide a written quote (“Quote”) setting out:
(a) any impacts on the timing of or completion of tasks;
(b) the varied price and payment arrangements; and
(c) any changes to the terms that apply to the performance of the Services.
7.2 The Parties must negotiate in good faith to agree on the price and other terms applicable to the Variation.
7.3 If the Parties agree in writing to the terms of the Variation then:
(a) the Supplier must perform the Services as varied by the Variation;
(b) the Purchaser must pay the varied price;
(c) the terms and conditions of the Agreement are varied by the terms of the Variation.
8. Supplier’s warranties
8.1 The Supplier warrants that it has good and unencumbered title to the Goods and that the Goods:
(a) conform with any description, specification or instruction supplied by the Purchaser and any sample provided by the Supplier;
(b) are newly manufactured (unless otherwise specified e.g. can be made from approved recycled materials);
(c) are free from defects in materials, manufacture and workmanship;
(d) conform to any applicable Australian Standards or other standards nominated in this Agreement;
(e) conform to the Specifications and any Technical Specifications provided by the Supplier or the Purchaser;
(f) are of merchantable quality;
(g) are installed correctly (if the Supplier is responsible for installation);
(h) are fit for their intended purpose; and
(i) are manufactured and supplied without infringing any person’s Intellectual Property Rights.
8.2 The Supplier must ensure that the Purchaser receives the full benefit of any manufacturer’s warranties in respect of the Goods.
8.3 During any Warranty Period any defects in the Goods must be rectified at the Supplier’s expense.
8.4 If Services not goods are being supplied under this Agreement then the Supplier warrants that the Services will:
(a) comply with the description of the Services in Attachment 1;
(b) be provided with due care and skill;
(c) be provided in a timely and efficient manner;
(d) be provided in accordance with the best practices current in the Supplier’s industry;
(e) be supplied without infringing any person’s Intellectual Property Rights;
(f) be performed by the Supplier and/or the Supplier’s Personnel; and
(g) be supplied in the most cost effective manner consistent with the required level of quality and performance.
9. Price and payment
9.1 In consideration for the supply of the Goods and/or the Services, the Purchaser will pay the Price as quoted.
9.2 A purchase order may be provided describing the goods and any manufacturing instructions.
9.3 Unless otherwise expressly stated the Price is exclusive of GST.
9.4 The Supplier is entitled to invoice the Purchaser for payment in respect of the Goods and/or Services, when the Goods have been supplied and accepted under clause 3, and the Services have been supplied in accordance with this Agreement.
10. Goods and Services Tax
10.1 The Supplier represents that:
(a) the ABN shown in the Standard Goods and Services Agreement is the Supplier’s ABN; and
(b) it is registered under the A New Tax System (Australian Business Number) Act 1999 (Cth),
10.2 If the Supplier is not registered for GST, then GST must not be charged on supplies made under this Agreement.
11. Intellectual property rights
11.1 Nothing in this Agreement affects or transfers the ownership of Intellectual Property Rights.
11.2 No right of license, either express or implied, under any patent, copyright, trade secret or other intellectual property right is granted herewith.
12.1 The Supplier must effect and maintain the policies of insurance including:
(a) those required by law;
(b) public liability to $10 million.
(c) In the case of Services, hold Professional Indemnity cover to the value of $10 million
12.2 The policies of insurance referred to in clause 12.1 must be held until the expiry of the Agreement.
13. Confidential information
13.1 Subject to this clause 13 and specific inclusions and conditions in the Standard Goods and Services Agreement neither Party may disclose any Confidential Information belonging to the other Party except as genuinely and necessarily required for the purpose of this Agreement.
13.2 A Party may disclose Confidential Information belonging to the other Party:
(a) to an employee, agent or adviser of that Party, on a “need to know” and confidential basis;
(b) as required by law or a court order;
(c) in accordance with any Parliamentary or constitutional convention;
(d) to the Australian Competition and Consumer Commission (ACCC) if the party reasonably suspects, or is notified by the ACCC that it reasonably suspects, that there is Cartel Conduct or unlawful collusion in connection with the supply of Goods or Services under this Agreement; or
(e) for the purposes of prosecuting or defending proceedings.
13.3 Unless specified otherwise, neither this Agreement nor the parties’ conduct pursuant hereto grants any right or license under any patent or other intellectual property law except for the limited right to use the Confidential Information to accomplish the manufacturing of goods.
13.4 The Parties may mutually agree to disclose Confidential Information.
Any claim the Purchaser may have against the Supplier may be set off against monies owed to the Supplier under this Agreement.
15. Dispute resolution
15.1 Subject to clause 15.4 a Party may not commence legal proceedings without first referring the dispute to the other Party under this clause.
15.2 Either Party may give the other a notice in writing (“dispute notice”) setting out the details of the dispute.
15.3 Within 5 Business Days or such other period as may be agreed by the Parties, representatives must meet and use reasonable endeavours to resolve the dispute.
15.4 A Party may seek immediate interlocutory relief or other interim remedy in case of genuine urgency.
16. Termination of contract
16.1 The Purchaser may terminate the Standard Goods and Services Agreement immediately upon giving notice in writing to the Supplier if:
(a) the Purchaser reasonably forms the opinion that the Supplier will be unable to perform its obligations under this Agreement;
(b) the Supplier is in breach of this Agreement and has not rectified such breach within 10 Business Days of the Purchaser giving notice in writing to the Supplier requiring the rectification of such breach;
(c) the Purchaser becomes aware that the Supplier is in breach of its statutory obligations with respect to its employees;
(d) the Supplier fails to comply with a notice issued under clause 16.2; or
(e) the Supplier fails to disclose a conflict of interest;
(f) any Other Termination Right occurs; or
(g) the Supplier suffers or, in the reasonable opinion of the Purchaser, is in jeopardy of becoming subject to any form of insolvency administration or bankruptcy.
16.2 The Purchaser may terminate this Agreement without cause by giving the Supplier 30 days notice.
16.3 If the Purchaser terminates this Agreement in accordance with clause 16.2:
(a) the Supplier has no claim against the Purchaser arising out of or in relation to such termination other than the right to be paid for Goods accepted and/or Services provided before the effective termination date; and
(b) the Supplier must comply with all reasonable directions given by the Purchaser.
16.4 The Supplier may terminate this Agreement immediately upon giving notice in writing to the Purchaser if the Purchaser is in breach of this Agreement and has not rectified such breach within 14 days of the Supplier giving notice in writing to the Purchaser requiring the rectification of such breach.
17.1 Any termination of this Agreement by either Party does not affect any accrued right of either Party.
17.2 Despite termination or completion of this Agreement, this clause 17 and clauses 4, 8, 11, 12, 13, 15 and those Special Conditions that by their nature remain in force, shall survive.
18.1 With the exception of the Approved manufacturing Subcontractors, the Supplier must not engage any manufacturing subcontractor without the prior written permission of the Purchaser.
18.2 The Supplier remains responsible for obligations performed by the Approved manufacturing Subcontractors to the same extent as if such obligations were performed by the Supplier.
19. Conflict of interest
19.1 The Supplier must disclose in writing to the Purchaser all actual and potential conflicts of interest that exist, arise or may arise (either for the Supplier or the Supplier’s Personnel) in the course of performing its obligations under this Agreement as soon as practical after it becomes aware of that conflict.
20. Compliance with laws
The Supplier must comply with the laws in force in the jurisdiction where it is performing its obligations under this Agreement.
21. Governing law and jurisdiction
21.1 This Agreement is governed by the laws in the State of New South Wales.
21.2 The courts of the State of New South Wales have exclusive jurisdiction in connection with this Agreement.
22. Entire agreement
The Agreement constitutes the entire agreement between the Parties in respect of the matters dealt with in this Agreement and supersedes all prior agreements, understanding and negotiations in respect of the matters dealt with in this Agreement.
23. No assignment
23.1 The Supplier must not assign, encumber or otherwise transfer any of its rights or obligations under this Agreement without the written approval of the Purchaser which approval shall not be unreasonably withheld.
No addition to or modification of any provision of this Agreement will be binding upon the Parties unless made by written instrument signed by the Parties.
25.1 Each word, phrase, sentence, paragraph and clause of this Agreement is severable.
25.2 Severance of any part of this Agreement will not affect any other part of this Agreement.
26.1 The Parties may sign this Agreement in one (1) or more counterparts by the duly authorized representatives of the Parties, each of which constitutes an original and all of which taken together shall constitute the Agreement.
26.2 The Parties may sign and deliver a counterpart of this Agreement by facsimile or by emailed portable document format (“PDF”) document (or other mutually agreeable document format), and a reproduction of this Agreement with a Party’s signature made by facsimile or PDF, sent by facsimile or email shall have the same effect as and be enforceable as a signed and delivered original version of this Agreement.
27. Work health & safety
27.1 The Supplier must comply with the NSW Work Health and Safety requirements at all times, regardless of whether the Purchaser issues direction in that regard or not.
27.2 If all or part of the work under this Agreement is to be provided on the premises of the Purchaser or Purchasers customer or under the direction of the Purchaser, the Supplier must comply with the respective work health and safety policies, procedures and instructions. If the Supplier becomes aware of any potentially hazardous situation on the respective premises, the Supplier must immediately bring it to the Purchaser’s attention.
28. Acting ethically
The Supplier must conduct itself in a manner that does not invite, directly or indirectly, the Purchaser’s officers, employees or agents or any public sector employee to behave unethically, to prefer private interests over the Purchaser’s interests.
29.1 In resolving inconsistencies in this Agreement, the documents have the following order of priority:
(a) Special Conditions;
(b) Standard Terms and Conditions; and
(c) Attachments to this agreement.
29.2 In this Agreement (unless the context requires otherwise):
(a) a reference to any legislation includes:
i. all legislation, regulations and other forms of statutory instrument issued under that legislation; and
ii. any modification, consolidation, amendment, re-enactment or substitution of that legislation;
(b) a word in the singular includes the plural and a word in the plural includes the singular;
(c) a reference to two or more persons is a reference to those persons jointly and severally;
(d) a reference to dollars is to Australian dollars;
(e) a reference to a Party includes that party’s administrators, successors and permitted assigns.
30. Special conditions
The special conditions (if any) form part of this Agreement and to the extent of any inconsistency, take precedence over the other terms of this Agreement.
31. Contract length
These terms and conditions apply to all purchases made by Starwater Solutions Pty Ltd or nominee(s) in perpetuity.