The following terms apply to all purchases of services and goods where a purchase order has been issued to a supplier by the City of Whittlesea. These terms take priority over any terms proposed by any supplier, including terms contained in any invoice or other documentation delivered with the goods or services. However, where alternate terms and/or conditions were stated in a previously issued request for quotation or tender document, those alternate terms and/or conditions take precedence.
The following terms will, if not inconsistent with the context, have the meanings indicated:
"Council" means the Whittlesea City Council.
"Delivery Date" means the date the Goods or Services are required by as specified in this Purchase Order.
"Goods" means the goods described in this Purchase Order.
"Intellectual Property" means any and all technology and information existing at the date of this
"Purchase Order" which relates to the Services including but not limited to:
(a) any confidential information, copyright, patent and trademarks, and includes any right to apply for registration of these intellectual property rights; and
(b) any processes, formulae, designs, reports, drawings, specifications, software, blue-prints, patent applications, know-how and research data.
"Purchase Order" means the Purchase Order preceding and including these Terms.
"Purchase Price" means the total as specified in this Purchase Order.
"Services" means the services described in this Purchase Order.
"Supplier" means the party to whom the Purchase Order is issued to provide the Goods or perform the Services and includes its servants, agents and sub-contractors.
If the Supplier is providing Goods but not Services, references in these Terms to the provision of Services will not apply. If Supplier is providing Services but not Goods, references in these Terms to the provision of Goods will not apply.
The Supplier must supply the Goods or complete the Services on or before the Delivery Date in accordance with this Purchase Order.
- In addition to other warranties in this Purchase Order and implied by law, it is a condition of the Council's purchase of the Goods or Services that:
- the Supplier has full power to enter into and perform its obligations under this Purchase Order;
- the Goods will be new, unless agreed otherwise;
- the Goods will be fit for the purpose for which items of the same kind are commonly supplied;
- the Goods are merchantable quality and free from defects; and
- the Supplier is capable of passing title in the Goods free of encumbrances and all other adverse interests at the time they are supplied to the Council;
- the Services will be supplied with all due care and skill in accordance with any legal requirements;
- the Supplier has the qualifications, experience and expertise represented to the Council;
- the Supplier has no conflict of interest in supplying the Services;
- the Services will conform to the reasonable requirements of the Council;
- the Supplier will not do any act or thing prejudicial to the goodwill, reputation or public image of the Council; and
- the Supplier is entitled to use any Intellectual Property which may be used by it in connection with the supply of Goods or Services and that the supply of any Goods or Services will not infringe any third-party Intellectual Property.
- For the avoidance of doubt, the warranties identified in this Purchase Order are essential terms of this Purchase Order.
- If the Supplier breaches any one or more of the warranties specified in Terms 4.1.1 to 4.1.11 above the Council may (without prejudice to any other rights that it may have under the Purchase Order or at common law against the Supplier) immediately terminate this Purchase Order and any other purchase order between the parties.
- Delivery, Risk and Title
- The Supplier must deliver the Goods in accordance with any delivery instructions specified in the Purchase Order by the Delivery Date.
- The Supplier must notify the Council immediately if the Supplier becomes aware that the Goods (or part of the Goods) will not be delivered to the Council by the Delivery Date. If the Goods (or part of the Goods) are not delivered to the Council by the Delivery Date or any alternative date agreed by the Council, the Council may, without prejudice to any other remedy available to the Council, immediately terminate the Contract by written notice to the Supplier.
- Title to the Goods will pass, without exclusion or limitation, from the Supplier to the Council upon the first to occur of:
- delivery of the Goods to the Council; or
- payment of any deposit for the supply of the Goods; or
- payment to the Supplier of the Purchase Price for the Goods,
subject to the Council’s rights to reject the Goods in the event that they are damaged, defective or otherwise do not comply in all respects with the terms of this Purchase Order.
- Risk in the Goods will pass from the Supplier to the Council upon delivery of the Goods to the Council.
- Particular Obligations
The Supplier agrees that, in supplying the Services, it will comply with:
- the Information Privacy Principles described in the Privacy and Data Protection Act 2014, as if that Act applied to it; and
- section 38(1) of the Charter of Human Rights and Responsibilities Act 2006, as if that sub-section applied to it.
- Variation or Termination
- The Council may, at any time, by giving written notice to the Supplier, terminate this Purchase Order and the Supplier must on receipt of such notice immediately cease all work in connection with the supply of the Goods or provision of the Services and take all appropriate action to mitigate any loss or prevent further costs being incurred. In such event the Council will pay the reasonable fees and expenses of the Supplier in accordance with this Purchase Order but not any loss of prospective profits. In no circumstances must the fees or expenses payable exceed the fees or expenses that would have been paid had the Purchase Order been completed.
- The Council may at any time give written notice to the Supplier proposing a variation to the quantity of the Goods or the scope of the Services. The Supplier must, as soon as possible, or in any event within 7 days, provide a written proposal as to the varied Purchase Price that will apply for the provision of the varied Goods or Services. The Council may accept the varied Purchase Price proposal within 7 days of receipt from the Supplier but in the absence of such acceptance this Purchase Order will continue as if no proposal under this sub-clause had been made.
- Status of Services
Upon request by the Council, the Supplier will promptly provide the Council with a written report giving details of the status of the Services, including tasks completed, tasks yet to be completed and estimated completion dates.
The Supplier will not disclose, and will ensure that its employees, agents and contractors do not disclose, any confidential information relating to the Council or its affairs which may come to its or their knowledge during the term covered by this Purchase Order.
- Intellectual Property
- Material Created
The ownership of all Intellectual Property created as a result of the supply of Goods or Services will vest in the Council. The Supplier assigns ownership of all such Intellectual Property rights to the Council and will ensure that its employees, sub-contractors and agents execute all documents necessary to assign to the Council all such rights.
The Supplier indemnifies and will at all times keep the Council indemnified against any action, claim, suit or demand, including an action, claim, suit or demand for or liability to pay compensation or damages and costs or expenses arising out of or in respect of any breach of any third party's Intellectual Property rights relating to the supply of the Goods or Services.
- Material Created
- Rejection of Goods or Services
The Council may reject any of the Goods or Services which do not comply in all respects with this Purchase Order. The Council is not required to make payment for any rejected Goods or Services.
- The Council may, subject to giving the Supplier reasonable prior notice, access and inspect any of the Goods and the processes under which they are being manufactured or stored at any reasonable time before delivery.
- The Supplier must ensure that the Council has access to the Goods at all reasonable times before delivery and must provide all facilities necessary for the accessing and inspection of the Goods at the Supplier's premises or wherever the Goods are stored or are in the course of manufacture.
If the Supplier complies with its obligations under this Purchase Order, the Council must pay the Purchase Price to the Supplier. Council’s standard terms are payment 30 days from the end of month of purchase unless otherwise negotiated.
- Goods and Services Tax ("GST")
The Purchase Price is inclusive of GST. Where the Council is required to pay the Supplier any amount under this Purchase Order on account of GST, the amount representing GST will only be payable by the Council to the Supplier where the Supplier supplies to the Council a tax invoice for GST purposes, in a form approved by the Council.
- Default by Supplier
- If the Supplier defaults in the performance or observance of any obligation it has under this Purchase Order, the Council may give notice to the Supplier specifying the default and requiring that such default be remedied within 14 days.
- If, within 14 days after receipt of the notice, the Supplier fails to remedy the default, to the satisfaction of the Council, the Council (without prejudice to any other rights that it may have under this Purchase Order or at common law against the Supplier) may:
- suspend payment under this Purchase Order; or
- terminate this Purchase Order and any other purchase order between the parties.
- Insolvency of Supplier
If the Supplier -
- being a person, commits any act of bankruptcy; or
- being a company, commits any act of insolvency -
the Council may terminate this Purchase Order immediately.
- Sub-Contracting and Assignment
The Supplier must not, except with the written consent of the Council, sub-contract or assign the whole or any portion of its rights and obligations under this Purchase Order, and no sub-contractors or assignees will have any rights under this Purchase Order against the Council or be entitled to receive any payments under this Purchase Order from the Council. Where the Council gives its consent to the Supplier in accordance with this sub-clause, the Supplier remains fully responsible for performance under this Purchase Order.
- Statutory Requirements
- The Supplier must obey and must ensure that its employees, sub-contractors and agents obey any Acts, regulations and local laws in any way applicable to the performance of this Purchase Order, including, without limitation, any occupational health and safety legislation.
- Where the Supplier's employees, sub-contractors and agents are required to attend the Council's premises, the Supplier will ensure that they comply with any reasonable policy of the Council relating to security, occupational health and safety and discrimination.
- Indemnity and Advance Release
The Supplier indemnifies and holds harmless the Council, its Councillors and staff from and against any liabilities of any kind whatsoever, including all actions, claims, losses, damages, penalties or demands consequent upon, occasioned by or arising from its performance or purported performance of its obligations under this Purchase Order, including, without limitation, any acts or omissions (including negligent acts or ommissions) of the Supplier's agents and employees.
This Purchase Order may only be varied or replaced by a document duly executed by the parties.
- Further Assurance
Each party must promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete the transactions contemplated by this Purchase Order.
- Time of the Essence
Time is of the essence as regards all dates, periods of time and times specified in this Purchase Order.
- No Relationship
Nothing in this Purchase Order will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between any of the parties. Nothing in this Purchase Order will be deemed to authorise or empower any of the parties to act as agent for or with any other party.
- Number and Gender
In this Purchase Order, a reference to:
- the singular includes the plural and vice versa; and
- a gender includes the other genders.
- Whole Understanding
This Purchase Order constitutes the whole understanding between the parties and embodies all terms on which the Goods or Services are to be supplied by the Supplier. If the Supplier's acceptance or supply of this Purchase Order contains any terms in conflict with this Purchase Order, this Purchase Order will have precedence unless otherwise agreed by the Council in writing.
- Governing Law
The law of the State of Victoria governs this Purchase Order and any legal proceedings under this Purchase Order.
- Joint and Several Obligations
If the Supplier consists of two or more parties, this Purchase Order binds each of them severally and jointly.
- Method of Giving Notices
A notice required or permitted to be given by one party to another under this Purchase Order must be in writing, addressed to the other party and:
- delivered to that party's address; or
- transmitted by facsimile to that party's facsimile number.
- Receipt of Notices
A notice given to a party in accordance with Term 28 must be treated as having been duly given and received:
- if delivered to a party's address, on the day of delivery; or
- if transmitted by facsimile to a party's facsimile number and a correct and complete transmission report is received, on the day of transmission.