HSE Mining Standard Terms and Conditions for the supply of goods

 

1 Definitions and interpretation

1.1 Definitions

In this agreement the following definitions apply:

Business Days means a day that is not a Saturday, Sunday or public holiday in the Australian state or territory where the Purchase Order was issued.

Claim means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise.

Company means the HSE entity specified in the Purchase Order, being whichever of HSE Group Limited or any of its fully owned subsidiaries including HSE Asset Management Pty Ltd, HSE Rental Pty Ltd and HSE Contracting Pty Ltd.

Corporations Act means the Corporations Act 2001 (Cth).

Delivery Point has the meaning given in the Purchase Order.

Encumbrances means:

(a) any security interest as defined in the Personal Property Securities Act 2009 (Cth) (PPSA) or any right or interest of any kind given by way of security (including a mortgage, pledge, lien, charge or assignment);

(b) any other arrangement (including any preferential, trust or set-off arrangement) having a similar commercial effect as a grant of security;  or

(c) a guarantee or indemnity.

Goods means all goods that are the subject of the Purchase Order.

Liabilities mean all liabilities, losses, damages, outgoings, costs and expenses of whatever description and Liability has a corresponding meaning.

Purchase Order means a purchase order signed by the Company for the purchase of Goods from the Supplier.

Specifications mean the specification of the Goods set out in the Purchase Order.

Supplier means the entity supplying Goods under the Purchase Order and any related bodies.

Warranties means each of the representations and warranties specified in clause 11.

 

1.2 Interpretation

In this agreement, unless the context otherwise requires:

(a) headings are inserted for convenience only and do not affect the interpretation of this agreement.

(b) the word 'includes' or 'including' is not to be construed as a word of limitation.

(c) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.

 

2 Application

This agreement applies to all Purchase Orders placed by the Company with the Supplier.

 

3 Sale and purchase

The Supplier agrees to sell to the Company and the Company agrees to purchase the Goods on the terms of this agreement.

 

4 Price

Subject to subclauses 6.2 and 6.4, the Company must pay the price stated in the Purchase Order for the Goods.

 

5 Delivery

5.1 The Supplier acknowledges and agrees that time is of the essence when delivering the Goods and that it will deliver to the Company the Goods at the Delivery Point at the time stated in the Purchase Order. 

 

5.2 The Supplier must arrange all customs clearances and pay all customs duties on the Goods.

 

6 Invoicing

6.1 Tax invoice

The Supplier will issue a tax invoice to the Company for the sale and purchase of Goods at the end of the month in which delivery is made.

 

6.2 Disputed invoices

If the Company disputes any invoice, it must pay any amount not in dispute and provide a statement of the grounds for the dispute.  The parties will then confer and use their respective reasonable endeavours to resolve the dispute.  If the parties fail to resolve the dispute within five Business Days after the Company notifies the Supplier of the dispute, either party may refer the dispute for resolution in accordance with clause 16.

 

6.3 Payment

Subject to clause 6.2, the Company will pay to the Supplier the amount stated in an invoice issued pursuant to clause 6.1 within 30 days of the end of the month of the Supplier issuing the invoice.

 

6.4 Set off

The Company is entitled at any time without notice to set off any amount the Supplier owes it against any amount that it owes the Supplier under this agreement.  The Supplier is not entitled to set off or raise a counterclaim in respect of any amount it owes the Company.  An amount owed includes any amount owed, whether actually, contingently or prospectively.

 

7 Delivery and acceptance

7.1 The Supplier must ensure that the Goods comply with the Specifications.

 

7.2 The Company will:

(a) evaluate the Goods supplied;  and

(b) notify the Supplier if it accepts or rejects all or part of the Goods within 30 days after delivery.

 

7.3 Acceptance by the Company under this clause does not in any way:

(a) change or affect the Supplier's obligations under this agreement;  or

(b) affect the Company’s right to claim for any damage or loss that it may suffer because of the Supplier’s breach of warranty or failure to fulfil any of the Supplier’s other obligations under this agreement.

 

7.4 If the Company accepts part of the Goods that contain a defect, that decision does not bind the Company to accept future Goods that contain a defect.

 

7.5 If the Company rejects any Goods, the Supplier must promptly, at the Company’s option:

(a) take back the rejected Goods at no additional cost to the Company and immediately refund to the Company any payments made by the Company in respect of the rejected Goods as well as all costs the Company incurs in connection with replacing or making good the rejected Goods;  or

(b) take back the rejected Goods at no additional cost to the Company and promptly replace the Goods with Goods that are not defective;  or

(c) promptly make good the rejected Goods at no cost to the Company.

 

7.6 If clause 7.5(a) or 7.5(b) applies, then risk in and title to the Goods revert to the Supplier when the Goods are replaced or taken back (as applicable).

 

7.7 No act or omission on the part of the Company in connection with this clause will constitute a deemed acceptance of the Goods.

 

8 Defects

Without limiting any provision of this agreement, if all or part of the Goods fail or become defective for whatever reason (except to the extent caused by the Company's negligence) then, within the later of:

(a) 12 months from the date of delivery of these Goods to the Company;  and

(b) the period of warranty for these Goods; 

Clause 7.5 shall apply. 

 

9 Title and risk

9.1 Title

Title in the Goods passes to the Company on the earlier of:

(a) the date on which the Company makes final payment for the Goods;  and

(b) the date on which the Company accepts the Goods pursuant to clause 6.

 

9.2 Risk

Risk in the Goods passes to the Company on the later of:

(a) the date on which the Company makes final payment for the Goods;  and

(b) the date on which the Company accepts the Goods pursuant to clause 6.

 

10 Packaging

10.1 All Goods supplied shall be packaged as specified in the Purchase Order and if not specified shall be packed so as to avoid being damaged during transport, loading and unloading.

 

10.2 Unless the Company requests otherwise, the Supplier must at its own cost remove and dispose of all packaging material and other by-products associated with the supply or installation of any Goods promptly after delivery to the Company.

 

11 Manufacturer's warranties

11.1 The Supplier must if applicable provide all usual manufacturer's, importer's and any applicable third party warranties in respect of the Goods.

 

11.2 If the Supplier does not provide any warranties under clause 11.1, the Supplier must if applicable obtain for the benefit of the Company all usual manufacturer's, importer's and any applicable third party warranties in respect of the Goods.

 

11.3 During the period of the warranties obtained by the Supplier for the benefit of the Company referred to in clause 11.2, the Supplier must take all reasonable action required by the Company to enforce those warranties, or assist the Company to enforce those warranties.

 

12 Further warranties

12.1 Additional Warranties

In addition to the warranties provided under clause 11, the Supplier represents and warrants that:

(a) the Goods:

  • (i) are new (unless otherwise specified);
  • (ii) conform to the Specifications and any samples supplied to the Company;
  • (iii) are fit for the purpose for which the Goods are commonly used;
  • (iv) are free from defects in materials, workmanship and design;
  • (v) are of a merchantable quality;  and
  • (vi) are free and clear of all Encumbrances;

(b) the Supplier has good and marketable title to the Goods;

(c) in relation to the Goods, the Supplier has, or will prior to delivery be able to obtain, all requisite government authorisations, at the Supplier's own cost;  and

(d) upon delivery, no third party will have a beneficial interest in the Goods.

 

12.2 Acknowledgments

The Supplier acknowledges that:

(a) each warranty stated in clause 12is a separate representation and warranty, the interpretation of which is not limited or restricted by any other Warranty;

(b) each warranty stated in clause 12is in addition to any statutory warranties applicable to the Goods.

(c) the Supplier will immediately notify the Company in writing of any facts or circumstances which constitute or may constitute a breach of any Warranty.

 

13 Insurance

13.1 In relation to goods, the Supplier shall take out and maintain any policies of insurance:

(a) specified in the Purchase Order;
(b) reasonably requested by the Company;  and
(c) required by law.

 

13.2 The Supplier will, at the request of the Company, provide copies of all certificates of currency in respect of the insurances required to be taken out by the Supplier.

 

14 Indemnity

14.1 Supplier's Indemnity

The Supplier will indemnify the Company and hold it harmless against all Claims and Liabilities (including loss or damage to any of the Company’s equipment or property or personal injury or loss of life to its employees, agents or subcontractors) arising out of or in relation to this agreement except to the extent that such Claim or Liability results from the breach of this agreement by the Company or any negligent act or wilful misconduct of Company.

 

14.2 Company limitation of liability

The maximum sum for which the Company may be liable to the Supplier under this agreement is limited to the price payable for the Goods.

 

15 Termination

15.1 Termination by either party

A party may terminate this agreement with immediate effect by giving notice to the other party if:

(a) the other party becomes insolvent;
(b) if that other party breaches any provision of this agreement and fails to remedy the breach within 10 Business Days after receiving notice from the other party requiring it to do so;  or
(c) if that other party breaches a material provision of this agreement or where that breach is not capable of remedy.

 

15.2 Accrued rights and remedies

Termination of this agreement under clause 15 does not affect any accrued rights or remedies of either party.

 

16 Dispute resolution

16.1 Condition Precedent to Litigation

It is a condition precedent to the right of either party to commence litigation, other than for interlocutory relief, that it has first offered to submit the dispute to a negotiation in accordance with clause 16.2.

 

16.2 Negotiation

(a) Within 10 Business Days of receiving any party’s notice of dispute, the parties will arrange to meet to negotiate a potential resolution of the dispute.

(b) The parties will determine the appropriate representative to attend, which representative will be deemed to have the authority to resolve the dispute on behalf of each party.

(c) If the parties do not meet or meet and do not resolve the dispute, either party is then entitled to commence proceedings.

 

16.3 This clause will remain operative after the contract has been performed and notwithstanding its termination.

 

17 Force majeure

17.1 Neither the Company nor the Supplier shall be liable to the other for default or delay in performing its obligations in respect of a Purchase Order caused by any occurrence beyond its reasonable control including, without limitation, fire, strike, disturbance, riot, war, Act of God and government order or regulation, provide that the party affected by such occurrence notifies the other party in writing within Seven (7) days of the commencement of the occurrence. 

 

17.2 When the party ceases to be effected by the force Majeure event it must immediately recommence performing its obligations under the Purchase Order and notify the other party accordingly.  However, if as a result of any such force majeure event, supply of all or parts of the Goods delayed by more than 10 days after the delivery date specified in the Purchase Order the Company may, without penalty, cancel the Purchase Order to the extent it relates to such delayed goods.

 

18 GST

18.1 Interpretation

In this clause 18, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

 

18.2 Invoice

A party need not make a payment for a taxable supply made under or in connection with this agreement until it receives a tax invoice for the supply to which the payment relates.

 

18.3 GST gross up

If a party makes a supply under or in connection with this agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 0(GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.

 

18.4 Reimbursements

If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 0.

 

19 Notices

A notice is treated as having been duly given and received when delivered, in writing, to the other party’s address.  The addresses of the parties are as stipulated in the Purchase Order.

 

20 Miscellaneous

20.1 Variation

No variation of this agreement will be of any force or effect unless it is in writing and signed by the parties to this agreement.

 

20.2 Assignment

The Supplier is not permitted to assign or sub-contract all or any part of its obligations under this agreement without the prior written consent of the Company, which may be given or withheld in its absolute discretion.

 

20.3 Survival

Any indemnity and any obligation of confidentiality under this agreement is independent and survives termination of this agreement.  Any other provision by its nature intended to survive termination of this agreement survives termination of this agreement.

 

20.4 Entire agreement

This agreement (including the Purchase Order) constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

 

20.5 No merger

The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this agreement.

 

20.6 Severability

If a clause or part of a clause of this agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.  If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.

 

20.7 Waiver

(a) The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party. 

(b) A waiver by a party is only effective if it is in writing.  A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given.  It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

 

20.8 Relationship

(a) The Supplier is an independent contractor and must exercise independent control, management and supervision in the performance of the Purchase Order. 

(b) The Supplier is not the Company’s agent in any way. 

(c) The Supplier's personnel will not under any circumstances be considered employees of the Company for any purpose.

 

20.9 Governing law and jurisdiction

This agreement is governed by the law of Western Australia.  The parties submit to the non-exclusive jurisdiction of the courts of Western Australia.  The parties will not object to the exercise of jurisdiction by those courts on any basis.

 


CALL US ON
(08) 9450 9800