Contract Price shall mean the total price for the Items to be supplied by the Supplier as set out in the Purchase Order.
Delivery Date shall mean the date as set out in the PO for delivery of the Items.
HammondCare shall mean HammondCare (ABN 48 000 026 219) or its subsidiary HammondCare Health and Hospitals Limited (ABN 72 074 354 028) as applicable.
Items shall mean the goods (including equipment where applicable) and/or services (as specified in the Purchase Order) to be provided under the Purchase Order.
Supplier shall mean the person, firm, enterprise or corporation as set out in the Purchase Order.
PO shall mean the goods and/or services and any instructions given in the document referred to as “the Purchase Order” for the supply of the goods and/or services and includes all documents annexed or attached thereto or referenced therein and these T&Cs.
- Validity of Purchase Order. Only Purchase Orders authorised by an officer of HammondCare will be recognised. Commencement by the Supplier of the supply of the goods or services detailed in the Purchase Order will be taken to be acceptance of the Purchase Order, including these T&Cs.
- Variations. Prior to the fulfilment of the Purchase Order, HammondCare may, by written notice at any time, make variations to the content, specifications, designs or drawings, samples or other descriptions or requirements to which the Items are to conform. If any such variations cause an increase or decrease in the cost of or time required for the performance of any part of the Purchase Order, then an equitable adjustment may be made by agreement between the parties in the price or delivery schedule or both and the Purchase Order will be modified in writing accordingly.
- Risk, title and delivery.
3.1. The Supplier warrants that it holds title to the Items supplied under the Purchase Order and risk in them shall remain with the Supplier until they are delivered and accepted by HammondCare. All Items are subject to inspection and testing by HammondCare. If any of the Items are found by HammondCare to be defective or not in conformity with the requirements under the Purchase Order, HammondCare may at its option a) reject and return the Items at the Supplier’s expense or b) require the Supplier to replace the non-conforming Items with items that conform with the Purchase Order. HammondCare will have no payment obligation in respect of Items which are not accepted.
3.2 The Supplier will supply the Items by the Delivery Date. In the event that the Supplier fails to deliver the Items by the Delivery Date, HammondCare shall be entitled, at its election, to:
- terminate the PO with immediate effect; or
- apply late delivery charges calculated at 5% of the Contract Price of the Items for every day late, subject to a maximum amount of 100% of the Contract Price.
- Price. Subject to these T&Cs, prices specified in the Purchase Order shall remain firm and fixed. Prices include any and all charges including but not limited to taxes, duties, inspection charges, packaging and shipping costs.
- Invoices. The Supplier shall submit tax invoices. Tax invoices shall contain the following information as applicable: the Supplier’s details including ABN, Purchase Order number, description/quantity of Item(s) supplied, GST (shown separately if applicable) and total amount payable. HammondCare shall not be obligated to pay the Supplier for any Items invoiced 180 days after the date of supply of the Items.
- Payment. Subject to its approval by HammondCare, HammondCare will pay the Supplier’s tax invoice 30 days from the end of the month in which the goods were received unless agreed or stated otherwise.
- Warranties. The warranties here listed are in addition to any warranties referred to in the Purchase Order and to any other statutory conditions or warranties (whether expressed or implied) including those provided for under the Competition and Consumer Act 2010 (Cth).
Services warranty. The Supplier represents and warrants that it shall perform the services in a proper, workmanlike and professional manner with the degree of care and skill required by current, good and sound professional procedures of the relevant kind. Further, the Supplier represents and warrants that it shall perform the services in accordance with all applicable specifications and laws and the services shall be correct and appropriate for the purposes contemplated in the Purchase Order.
Goods (including equipment as applicable) warranty. The Supplier represents and warrants that the goods are of merchantable quality and are fit for purpose and conform to applicable specifications, drawings, samples or other descriptions in the Purchase Order.
- Indemnity. In relation to the supply of the Items under the Purchase Order, the Supplier shall indemnify HammondCare against:
- loss of or damage to the property of HammondCare; and
- a claim or claims by any person against HammondCare in respect of any personal injury or death; and
- any claim that the Items infringe a copyright, patent, trademark, trade secret or any other intellectual property or proprietary right of any third party; and
- the Supplier’s breach of warranty, negligence, wilful misconduct, fraud, misrepresentation or violation of law,
but the Supplier’s liability to indemnify HammondCare shall be reduced to the extent that the act(s) or omission(s) of HammondCare or its employees, agents or other contractors contributed to the loss, damage, death or injury; and
- any other loss or damage arising out of or in connection with the Purchase Order (including any incidental, indirect, special, punitive or consequential damages or damages for any loss of profits, loss of revenue, loss of business or goodwill, data or data use) where the loss or damage is due to the Supplier’s negligence, wilful misconduct, fraud, misrepresentation or violation of law.
- Insurance. The Supplier shall take out and continue for the duration of the Purchase Order all necessary insurances of the class/classes and in the amount/amounts indicated in the Purchase Order. Certificates of insurance indicating such coverage shall be provided to HammondCare upon request.
- Termination. HammondCare may terminate all or any part of a Purchase Order in the event of any default by the Supplier. Upon termination, the Supplier shall deliver to HammondCare such work in progress or completed Items as HammondCare requests. HammondCare shall have no liability to the Supplier beyond any amount(s) payable for Items up to the date of termination which have not previously been paid.
- Limitation of liability. In no event whatsoever or howsoever arising shall HammondCare be liable to the Supplier or any third party for any incidental, indirect, special, punitive or consequential damages or damages for any loss of profits, loss of revenue, loss of business or goodwill, data or data use arising out of or in connection with the Purchase Order, whether an action in contract or tort (including negligence) or any other legal theory and whether or not HammondCare has been advised of the possibility of such losses and/or damages.
- Confidentiality. The Supplier agrees to treat all Confidential Information as confidential both during and after the term of the Purchase Order. “Confidential Information” means all information to which the Supplier has access in connection with the Purchase Order including but not limited to all software, documentation, financial, marketing and customer data and other business information and any material or information that is either marked confidential or which is disclosed under circumstances such that one would reasonably expect it to be confidential. The Supplier agrees to use Confidential Information received under the Purchase Order solely for the purpose of performing its obligations under the Purchase Order. The Supplier will not duplicate any Confidential Information unless and only to the extent that such duplication is necessary to perform its obligations under the Purchase Order. The Supplier will not disclose or make available the Confidential Information to any third party except as specifically authorised by HammondCare in writing. All Confidential Information accessed by the Supplier under the Purchase Order shall remain the sole property of HammondCare. The Supplier will ensure that each of its employees, agents and subcontractors who perform work under the Purchase Order are aware of and comply with the confidentiality obligations under the Purchase Order.
- Work Health and Safety. The Supplier shall perform its obligations under the PO in accordance with the provisions of the Work Health and Safety Act 2011 (NSW) and associated Work Health and Safety Regulation 2011 (NSW) and any associated laws and codes of conduct, as amended from time to time. The Supplier, where required by HammondCare, must comply with the HammondCare Contractor Handbook and must provide to HammondCare a Safety Plan and Safe Work Method Statement before commencing work under the Purchase Order. The Safety Plan must address the methods by which the Supplier will discharge its statutory duties, as amended from time to time. The Supplier will comply with all applicable HammondCare safety requirements and procedures. The Supplier will be required to report to HammondCare on work health and safety matters periodically as determined by HammondCare. Where applicable, the Supplier will be required to obtain and supply to HammondCare national criminal history record check(s).
- Assignment. The Supplier may not assign its rights or obligations under the Purchase Order without the prior written consent of HammondCare.
- Governing law. The Purchase Order is governed by the law of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.
- Relationship of the parties. The Supplier is an independent contractor and nothing in the Purchase Order or elsewhere constitutes neither the Supplier as the agent or employee of HammondCare nor the parties as partners or joint venturers nor is the Supplier authorised to incur, nor may the Supplier incur, any debt or obligation on behalf of HammondCare, without the prior written consent of HammondCare.
- Severability. Any provision of the Purchase Order held to be void, invalid or unenforceable shall be deemed amended to conform to applicable laws or regulations or, if it cannot be so amended without materially altering the intention of the parties, it shall be taken to be severed the extent that it is void or to the extent of voidability, invalidity or unenforceability, but the remainder of the Purchase Order shall remain in full force and effect.
- Waiver. A waiver by either party of any default under the Purchase Order or of any term or condition under the Purchase Order shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
- Set off. HammondCare shall have the right at any time to set-off any amount owing from the Supplier to HammondCare against any amount payable by HammondCare pursuant to the Purchase Order.
- Notices. All notices under this Purchase Order shall be sent to a party at their address indicated on the front page of the Purchase Order or to such other address as notified by a party.
- Entire agreement. The Purchase Order shall constitute the entire agreement between the parties. No modifications may be made to the Purchase Order unless in writing and signed by both parties. The terms of the Purchase Order supersede any terms contained in all prior communications and representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers in respect of the matters dealt with in this agreement.
- Survival. The obligations set forth in clauses 7, 8, 9, 11, 12 and 14 - 21 of these T&Cs shall survive the expiration or termination of the Purchase Order.
- Other Terms & Conditions. For the avoidance of doubt, to the extent of any inconsistency with the Supplier’s terms and conditions, these T&Cs prevail.