These Terms and Conditions apply to every Purchase Order issued by GACWheels Mining Pty Ltd (the "Purchaser") to a supplier for the supply, delivery or performance of Goods, assembly work and services. By acknowledging or performing a Purchase Order, the Supplier agrees to be bound by the clauses set out below. In case of any conflict, the Purchase Order (including any attachments and special conditions) takes precedence over these terms.
The following definitions shall be used for the purpose of interpreting the Purchase Order and these Purchase Order terms and conditions:
A Purchase Order for Goods, services or assembly work is issued by Purchaser to Supplier. The Purchase Order is recorded on a document electronically generated by the Purchaser and titled "Purchase Order" bearing an identifying 'Purchase Order number' and a 'revision number' of "0" and refers to these Purchase Order terms and conditions as that of the Purchase Order. Purchase Order shall have a description of Goods, services or assembly work, applicable prices and delivery or performance details and may contain information specific to the particular Purchase Order including special conditions (if any) in a separate section titled 'Notes, Instructions and Special Conditions'. The Purchase Order may also include attachments (if any) referenced therein.
In case of any conflict or ambiguity, the Purchase Order (including any attachments) shall have precedence over these Purchase Order terms and conditions and special conditions (if any) shall have precedence over the rest of the Purchase Order.
Any reference by the Supplier to Supplier's own or any other terms and conditions in its quotation or other documentation presented by it in connection with the Purchase Order will have no effect on the Purchase Order.
The Purchase Order shall be effective from the date of issue as stated in the Purchase Order.
Upon receipt of Purchase Order, Supplier shall check it for discrepancies. Supplier shall acknowledge the Purchase Order by signing and returning the Purchase Order to Purchaser within five (5) days of receipt of Purchase Order. In the absence of such acknowledgment, the performance of the Purchase Order by Supplier shall constitute acceptance of the Purchase Order.
The Purchase Order shall constitute the entire agreement between Supplier and Purchaser and no representation or statements by any employee or agent not expressly stated in the Purchase Order shall be binding upon the Purchaser.
Supplier, at its expense, shall deliver the Goods or perform the assembly work or services using the mode, on the date and at the place specified in the Purchase Order in which any required advance notification of delivery or performance may be indicated. Unless stated otherwise in the Purchase Order, Supplier at its cost shall unload the Goods at the specified location.
Supplier must consolidate the Goods into a single delivery wherever reasonably practicable unless otherwise requested or approved in writing by Purchaser. Partial, split or progressive deliveries will not be accepted unless expressly agreed by Purchaser prior to dispatch. Each delivery must be accompanied by a delivery docket or equivalent delivery documentation clearly identifying the Purchase Order number, Supplier details, package contents, quantities delivered, and any Goods not delivered or placed on backorder. Where a split or partial delivery has been approved, the delivery documentation must clearly identify the Goods delivered, the Goods outstanding, and the expected delivery date for any outstanding Goods.
Supplier must ensure that all Goods are packed, loaded, secured, transported and delivered in a manner that prevents damage and complies with all applicable laws, regulations, standards and codes of practice, including any applicable Chain of Responsibility obligations. Supplier is responsible for ensuring that any carrier, driver, delivery personnel or subcontractor engaged by Supplier complies with those obligations.
All delivery personnel attending Purchaser's premises or any nominated delivery site must comply with applicable work health and safety requirements, site access requirements, signage, directions and reasonable instructions issued by Purchaser or its representatives.
Purchaser may reject any delivery that is not accompanied by the required delivery documentation, is not made in accordance with the Purchase Order, or does not comply with this Clause 4. Unless otherwise agreed in writing by Purchaser, payment may be withheld until the relevant Goods have been delivered in full and all required supporting documentation has been received and accepted by Purchaser.
Purchaser reserves the right at any time in relation to the Goods, assembly work or services to make a Revision to the Purchase Order to correct any errors or omissions therein or to make any changes including in respect of specifications, quantity, delivery, performance, timing or scope.
A Revision shall be made through the issue of an electronic document titled "Purchase Order" having the same Purchase Order number as the previously executed Purchase Order ('revision number' "0") and a 'revision number' (designated "1", "2" and so on) to signify the chronological order of issue of the respective Revisions.
Supplier must not make such corrections or changes until the resulting cost and time impacts have been agreed between the parties and the proper Purchase Order document with the appropriate 'revision number' has been authorised and issued by Purchaser and acknowledged and accepted by Supplier. Thereafter Supplier agrees to take immediate and necessary action to comply with such Revision to the Purchase Order.
Title to and property in the Goods shall pass to Purchaser on the first to occur of payment of any part of the Purchase Order price or delivery to the place specified in the Purchase Order. Such Goods yet to be delivered by Supplier shall be appropriately marked and identified as the property of Purchaser. For assembly work and services, risk in performance shall remain with Supplier until the work or services are completed and accepted by Purchaser unless otherwise expressly stated in the Purchase Order.
Risk in the Goods shall remain with Supplier until the time Purchaser takes delivery of the Goods unless otherwise as expressly stated in the Purchase Order. Any loss or damage to Goods howsoever caused when under Supplier's risk shall at its own cost be rectified by Supplier and thereafter when the risk in the Goods has transferred to Purchaser, Supplier shall be liable for any loss or damage to such Goods to the extent caused by its negligence, wilful act, misconduct, fault, breach of duty (statutory or otherwise) or breach of the Purchase Order.
Unless otherwise stated, the total Purchase Order price as indicated in the Purchase Order is in Australian currency excluding GST and is fixed and firm, not subject to escalation for the duration of the Purchase Order; and includes all packing, loading, transport, delivery, testing, certification, documentation, assembly, commissioning support, freight, handling, unloading where required by the Purchase Order or Clause 4, and all other costs necessary to supply the Goods in accordance with the Purchase Order and these terms and conditions.
Unless otherwise stated, payment of the Purchase Order price shall be made in full within thirty (30) days from end of month following receipt by Purchaser of a correct and proper tax invoice and all required supporting documentation, provided the Goods have been delivered in full to the delivery point stated in the Purchase Order and accepted by Purchaser in accordance with Clause 4. No payment shall be due or approved unless a valid Purchase Order has been issued by Purchaser and the relevant Purchase Order number is quoted on the tax invoice, delivery docket, credit note, statement, payment query and all associated correspondence.
Each invoice must be supported by delivery documentation that satisfies the requirements of Clause 4, including confirmation of the Goods delivered, quantities delivered, any approved partial or split delivery, and any Goods outstanding or on backorder. Purchaser may withhold payment for any invoice that does not match the Purchase Order, is submitted before delivery is complete, is not supported by the required delivery documentation, relates to unauthorised additional goods or services, or otherwise fails to comply with the Purchase Order or these terms and conditions.
All invoices, credit notes, statements, delivery dockets, payment queries and associated correspondence must be emailed to bills.mining@gacwheels.com. Failure to submit invoices and associated correspondence to this email address may result in processing and payment delays.
Supplier shall maintain insurance at least to the full replacement value of the Goods, including adequate transit insurance and insurance covering unloading if Supplier is required to unload the Goods. Such insurance shall cover the parties' respective rights and, if required by Purchaser, shall be in the joint names of the parties.
Supplier shall carry: (a) Workers Compensation/Employer's Liability required by law with where legally permitted an indemnity for Purchaser (including its client as applicable) and ensure that its sub-suppliers have similarly insured its employees; (b) adequate public & product liability insurance and (c) any other insurance pursuant to Clause 16 (if applicable) or as required by law.
Supplier shall ensure that all drawings and data used have been certified for construction and that Goods are manufactured according to such drawings and data or any subsequent revisions thereof.
Supplier warrants that Goods supplied shall be of merchantable quality, fit for the purpose intended, free of defects in materials, workmanship and design, and compliant with all specifications, drawings, standards, statutory requirements and site requirements stated or referenced in the Purchase Order. If Purchaser supplies manufacturing drawings to Supplier, Supplier warrants that the Goods are manufactured and supplied strictly in accordance with such drawings.
Supplier shall, at the option of Purchaser, either replace or repair and make good any Goods or parts of Goods supplied by it found to be defective or in any way unsuitable for the purpose intended for a period of twelve (12) months from the date of delivery of the Goods, or in the case of assembly work or services, from the date of completion and acceptance by Purchaser ("Warranty Period"). If Supplier repairs or replaces Goods, assembly work or services during the Warranty Period then a new warranty shall apply to those Goods, assembly work or services for a period of twelve (12) months from the date such repairs, replacements or remedial work were completed.
Supplier shall indemnify Purchaser against all claims by any person for loss or damage, direct or indirect, caused by Goods supplied, assembly work performed or services provided under the Purchase Order by Supplier in respect of Goods, assembly work or services which are defective, unsuitable for the purpose intended or otherwise not of merchantable quality where applicable.
Supplier warrants that Goods supplied, assembly work performed, services provided and any related work products, other than Goods, work or services supplied or performed in accordance with technical plans or drawings provided to Supplier by Purchaser, do not infringe any patent, copyright, design or trademark (whether foreign or domestic) which any person may in any way be entitled to and shall save harmless and indemnify Purchaser from and against all claims and proceedings for or on account of such infringements in respect of Goods supplied, assembly work performed, services provided or work products created by Supplier and from and against all related claims, demands, proceedings, damages, costs, charges and expenses.
Purchaser may at any time during the course of manufacture, supply, assembly or performance of services inspect Goods, work, records or activities to be supplied or performed, subject to Purchaser first giving Supplier reasonable notice of such inspection. Inspection by Purchaser shall neither relieve Supplier of its obligations under the Purchase Order or otherwise nor waive Purchaser's rights or remedies provided under the Purchase Order or otherwise.
Supplier shall ensure that all Goods are properly packed, labelled, handled, loaded, secured and presented for transport and delivery in accordance with the Purchase Order, Clause 4 and all applicable laws, regulations, standards and codes of practice. Supplier shall be liable for all or any damage, loss, destruction, delay, rejection, cost or expense arising from improper or inadequate packaging, labelling, handling, loading, securing, transport preparation or delivery documentation by Supplier or any carrier, delivery personnel or subcontractor engaged by Supplier.
If test certificates, inspection records, material certificates, compliance certificates or other quality records for Goods are required by the Purchase Order, those documents must be forwarded to Purchaser upon completion of testing or inspection and, where reasonably required by Purchaser, before dispatch or delivery. Any required certificates or quality records must be provided as part of the supporting documentation for the relevant delivery and invoice, and Purchaser may withhold acceptance of the Goods or payment until those documents have been received and accepted.
When assembly work and services on an external site ("Works") away from Supplier's workshops or premises form part of the Purchase Order, the following provisions shall apply:
For assembly work and services performed under the Purchase Order, the following provisions shall apply: (a) All invoices shall be accompanied by a schedule certified by Purchaser of the assembly work and services completed. (b) Progress payments shall not be made unless so stated in the Purchase Order. (c) Supplier shall obtain within ten (10) days of receipt of the Purchase Order and keep in effect during the currency of the Purchase Order such insurance as necessary to adequately protect Supplier and Purchaser in respect of liability for payment of compensation to any employee of Supplier or sub-supplier under law and shall lodge certificates of currency with Purchaser.
Sub-Purchase Orders: Supplier shall ensure that any sub-purchase or sub-supply agreements relating to this Purchase Order contain the same terms and conditions as contained in the Purchase Order.
The Purchase Order shall be binding upon and inure to the benefit of the parties hereto and (unless such interpretation shall be repugnant to the sense or context) their respective executors, administrators, personal representatives, successors and assigns but shall not be assignable by Supplier without the consent of Purchaser.
Neither a waiver of any provision of the Purchase Order nor consent to any departure therefrom shall be effective unless given in writing by Purchaser. Except as provided by law or equity or elsewhere in the Purchase Order, none of the provisions of the Purchase Order shall be varied or amended without the prior written consent of the parties.
If Supplier fails to make delivery, fails to perform within the time specified in the Purchase Order, delivers non-conforming Goods, or fails to make progress so as to endanger performance of the Purchase Order, then Purchaser may cancel the Purchase Order or part thereof and Supplier shall be liable for all costs incurred by Purchaser in purchasing similar Goods elsewhere.
The Purchaser may suspend all or part of the supply of the Goods or performance of any assembly work or services at any time for any period of time by notice in writing to the Supplier. The Supplier must comply with the notice and recommence supply or performance when notified by the Purchaser. The Supplier will not be entitled to any additional payment arising as a result of the suspension.
Insofar as this Clause 21 applies to property, it applies to property other than the Goods.
Supplier shall be solely responsible for and shall indemnify and hold Purchaser harmless against all claims, liens, demands, proceedings, judgements, fines, penalties, costs (including legal costs), losses, liabilities and other expenses whatsoever for any personal injury, including death and disease or loss of or damage to any property (including Purchaser's personnel and property) arising directly or indirectly out of or as a consequence of the performance of the Purchase Order or by failure of Supplier to perform any of its obligations under or to comply with requirements of the Purchase Order irrespective of sole or contributory negligence, misconduct, fault or breach of duty (whether statutory or otherwise) on the part of the Purchaser.
However, in circumstances where Supplier is performing assembly work or services (as defined in Clause 16), Supplier's liability to indemnify the Purchaser under the foregoing paragraph that arise as a direct result of such work or services shall be reduced proportionally to the extent that an act or omission of Purchaser may have contributed to the injury, death, loss or damage.
If at any time Supplier discovers that the time for delivery, assembly work or performance of services will not be met, it shall notify Purchaser within two (2) working days of discovery stating the cause of delay and earliest possible delivery, completion or performance date. Purchaser may thereupon, without prejudice to any other rights, terminate all or part of the Purchase Order.
If Supplier is delayed in delivery of the Goods, completion of assembly work or performance of services by unforeseeable occurrences or causes such as acts of God, state or nationwide strikes, fire or other causes of a similar nature beyond Supplier's reasonable control, Supplier shall notify Purchaser within two (2) days of the commencement of each such occurrence or cause and request an extension of time. If approved by Purchaser, any extension of time shall be granted in writing.
Supplier shall not be entitled to and hereby waives any and all claims to increased compensation for/or damages which it may suffer from any such unforeseeable causes.
Purchaser shall be granted access to any and all parts of Supplier's work premises and those of its sub-suppliers. Supplier shall expedite all Goods, assembly work and services ordered through sub-purchase orders on a regular basis and visit sub-supplier's facilities or premises when necessary.
Neither Purchaser nor Supplier shall be liable to the other for any consequential loss, loss of contract, business opportunity, profit or anticipated profit (or any loss of a similar nature) sustained by the other party.
The Purchase Order and the rights and obligations of the parties hereto shall be construed in accordance with and be governed by the laws applicable in the State of Queensland. Each of the parties hereto hereby agrees that any legal action or proceedings with respect to its obligations hereunder shall be brought in the State of Queensland and each of the parties hereto hereby submits to such jurisdiction.
Unless otherwise agreed to by the parties, any notice (and other documents) required or permitted to be given or delivered under this Purchase Order shall be delivered and addressed to the party at the addresses set forth in the Purchase Order. Notice shall be deemed to have been received by any party, and shall be effective: (a) on the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission (including any attached scanned documents), receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices; or (b) on the third day after which such notice is deposited, if mailed by certified or prepaid post. For the avoidance of doubt, notices under this clause do not replace the invoice submission requirements in Clause 8. All invoices and payment-related correspondence must be emailed to bills.mining@gacwheels.com and quote the relevant Purchase Order number.
For any further information regarding a Purchase Order, email bills.mining@gacwheels.com or contact your GACWheels Mining representative.