City of Armadale
The City of Armadale (the City) requests the supplier (Supplier) to supply the goods (Goods) and or services (Services) described on the purchase order (Purchase Order). The Supplier agrees to supply the Goods and or Services on these terms.
1. Issue and Acceptance of Purchase Order
1.1 The Purchase Order is the City’s offer to the Supplier for the supply of the Goods and or Services described in the Purchase Order, on these terms and conditions.
1.2 This Agreement is the entire agreement between the City and the Supplier (Parties) relating to its subject matter. If a distinct and fully signed written contract exists between the Parties for the supply of the Goods and or Services listed on the Purchase Order, the terms of that contract prevail over this Agreement.
1.3 Subject to clause 1.2, the Supplier supplies the Goods and or Services on these terms and conditions to the exclusion of any Supplier terms, even if the Supplier’s documents purport to override this Agreement.
1.4 The Supplier accepts the Purchase Order by supplying (or commencing to supply) the Goods and or Services. On acceptance, a binding contract is formed on these terms and the Purchase Order, including any Goods and or Services described in any document referred to in the Purchase Order (Agreement).
1.5 The Supplier must clearly include the Purchase Order number on all delivery dockets, bills of lading, packages, invoices, and all related documents and correspondence.
1.6 If the Supplier wishes to propose minor variations to these terms, the Supplier must immediately notify the City in writing of the variations sought, for the City’s written acceptance or rejection. If the Supplier manufactures and or supplies the Goods and or Services without first obtaining the City’s written acceptance of any proposed variations, the Supplier is deemed to have accepted this Agreement and the Purchase Order. No variation to this Agreement is binding unless in writing and signed by both Parties.
2. Warranties
2.1 The Supplier warrants that the Goods and or Services:
(a) are of acceptable quality;
(b) are manufactured and delivered strictly in accordance with any drawings, specifications, and other instructions of the City given for the purpose of this Agreement;
(c) are free from defects in design, materials, and workmanship;
(d) do not and will not infringe the intellectual property rights of any third party;
(e) comply with relevant laws, regulations, and legally applicable standards;
(f) are new on delivery to the City;
(g) are in accordance with, and will perform in accordance with, the Supplier’s technical specifications; and
(h) are performed in accordance with this Agreement.
2.2 Without limiting any other provision of this Agreement (including clause 2):
(a) the Supplier must provide the City the manufacturer’s warranty applicable to the Goods; and
(b) the Supplier must provide written evidence of assignment to the City of the manufacturer’s warranty, or other evidence sufficient to satisfy the City that the City is legally entitled to the benefit of that warranty.
2.3 The Supplier must advise the City whenever the Supplier believes that compliance with a City specification would render the Goods and or Services unsuitable for the City’s requirements.
2.4 All Goods and or Services are subject to acceptance testing by the City (within a reasonable time). The City may reject any Goods and or Services that, in the City’s opinion, do not comply with this Agreement, by notice in writing to the Supplier.
(a) Goods rejected under clauses 2.4 must be removed by, and at the expense of, the Supplier as soon as practicable after notice. If not removed within that time, the City may return them to the Supplier at the Supplier’s expense or store them at the Supplier’s expense. The City is not liable for loss or damage while the rejected Goods are in transit to the Supplier or in storage.
(b) The City may require the Supplier to refund any purchase price paid and recompense the City for any loss suffered in respect of the rejected Goods and or Services.
(c) Rejected Goods and or Services (including replacement Goods and or Services, or any portion) must not be offered again for acceptance under this Agreement.
2.5 The City’s acceptance of the Goods and or Services is without prejudice to the City’s rights and remedies for any breach by the Supplier of this Agreement. In particular: (a) the City may reject all or part of the Goods and or Services after acceptance if the City becomes aware they do not comply with this Agreement; and (b) the Supplier must not replace those Goods and or Services unless a new purchase order is generated in accordance with clause 2.5(b).
3. Price and Payment
3.1 The price payable is the price specified in the Purchase Order, unless otherwise agreed in writing.
3.2 The price in the Purchase Order is all inclusive and includes all taxes, duties, charges, levies, and fees payable on or in respect of the Goods and Services. The City is not liable for additional costs, charges, or price increases unless the City accepts them in writing before the specified delivery date (for Goods) or commencement date (for Services).
3.3 The Supplier must provide a tax invoice that complies with the A New Tax System (Goods and Services Tax) Act 1999 (and any substituted, replacing, or amending legislation), including the Supplier’s payment account details, and:
(a) for Services: monthly in arrears, stating the Purchase Order number, the amount asserted as payable, and the basis of calculation; and
(b) for Goods: for each consignment delivered, as soon as practicable and in any event within seven (7) days of delivery, stating the Purchase Order number, amount due, delivery date, description (including quantity, by item if applicable).
3.4 Unless otherwise agreed in writing, the City will pay amounts properly invoiced within thirty (30) days of receipt, provided the Goods and or Services have been accepted and the Supplier has complied with this Agreement. If the City disputes an invoice, the City will notify the Supplier within twenty one (21) days of receipt, and the City is not required to pay the disputed amount until the dispute is resolved. The City may withhold payment for unsatisfactory Services or where the Supplier is in breach of this Agreement.
3.5 The tax invoice must show the GST component as a separate amount.
3.6 The City will pay by Electronic Funds Transfer.
3.7 The City’s required method of submitting invoices is by email to accounts@armadale.wa.gov.au. Alternatively, invoices must be mailed to: City of Armadale, Attention: Accounts Payable, PO Box Locked Bag 2, Armadale WA 6112. Failure to comply with these requirements may result in loss or delay of invoices, and the City will not be deemed liable. No late payment penalty applies.
4. Delivery
4.1 Goods must be delivered on the date specified in the Purchase Order (Delivery Date). The City may require all Goods for a Delivery Date to be delivered at the same time, or may accept part delivery from time to time, at the City’s discretion. Services must be performed by no later than the date specified in the Purchase Order.
4.2 Subject to clause 6 and the City’s right to reject defective Goods or Services, title passes to the City on delivery to the nominated delivery address. Goods are delivered only when delivered and unloaded at the nominated delivery point in accordance with this Agreement.
4.3 Where reasonably practicable, the Supplier must inspect Goods on delivery to confirm no loss or damage from weather or transportation. The City will specify delivery method when placing the Purchase Order. If the Supplier arranges transportation, risk remains with the Supplier until delivery to the nominated place of delivery. If the City nominates delivery to a specific carrier, risk passes on delivery to that carrier.
5. Time is of the Essence
5.1 Time is of the essence. The City may return part or all Goods received after the Delivery Date and recover any loss or expense caused by late delivery. If circumstances may delay delivery, the Supplier must immediately notify the City and propose a revised delivery date, which the City may accept or reject at its discretion. The City’s exercise of rights under this clause is without prejudice to any other rights or claims.
5.2 The City may terminate this Agreement if the Supplier does not provide the Goods and or Services by the date specified in the Purchase Order. The City is not liable to pay for Goods and or Services delivered outside that date unless the Parties agree in writing to extend the date.
6. Inspection
6.1 On request and with reasonable notice, the Supplier must give the City’s representative access to the Supplier’s premises or processes (and any permitted subcontractor premises or processes) to inspect materials, Services, work in progress, or finished Goods.
6.2 Inspection does not constitute acceptance by the City and does not affect the Supplier’s obligations under this Agreement.
7. Indemnities
7.1 The Supplier is liable for and must indemnify on demand, the City (including its personnel), from and against all claims, losses, damages, defects and costs of any nature (including legal fees and expenses), arising in connection with the acts or omissions of the Supplier (including its personnel) under this Agreement, whether or not the acts or omissions are in tort (including negligence), breach of contract or otherwise, except to the extent that the loss is caused by the wilful misconduct or gross negligence of the City (including its personnel).
8. Site Work
8.1 Where the Supplier, its employees, contractors, or agents install or fit Goods, perform Services, or enter the City’s premises, the Supplier must, and must procure that they:
(i) perform work in a proper and workmanlike manner and in strict accordance with drawings, specifications, and instructions;
(ii) perform work so as not to impede or interfere with City activities, so far as reasonably practicable;
(iii) comply with all applicable laws, relevant Australian Standards, and the City’s directions and orders;
(iv) provide, at their own expense (except where specified), all labour, tools, equipment, and materials necessary to complete the work;
(v) enter the City’s premises at their own risk; and
(vi) comply with any applicable City based Contractor Management System before commencing and throughout performance.
9. Defects Liability Period
9.1 For supply and installation of Goods and or supply of Services, the Supplier must, at its own cost and if required by the City, rectify any omission or defect existing at completion or becoming apparent before expiry of the Defects Liability Period.
9.2 Unless otherwise agreed, the Defects Liability Period is twelve (12) months from the date of completion of work.
9.3 If rectification is not commenced or completed in accordance with the City’s instructions, the City may have rectification carried out at the Supplier’s expense (without prejudice to other rights), and the City’s rectification costs are a debt due from the Supplier to the City.
10. Insurance
10.1 The Supplier warrants it has and will maintain throughout this Agreement (including any Defects Liability Period) all insurance required by law and this Agreement, including:
(a) goods in transit: Transit and Material Damage Insurance for the goods’ purchase value (including freight and other charges) until title and risk pass to the City; and
(b) site works:
(i) Public and Products Liability Insurance of not less than twenty (20) million dollars ($20,000,000) for any one occurrence;
(ii) Workers Compensation and Employers Liability Insurance in accordance with the law of the State where work is performed, unlimited for common law liability; and
(iii) Motor Vehicle Comprehensive Cover including Third Party liability of not less than twenty (20) million dollars ($20,000,000).
10.2 Where this Agreement includes Services, required insurances must include:
(a) a Cross Liability clause noting the City for its rights and interests;
(b) a Principal’s Indemnity clause noting the City as Principal; and
(c) a waiver of subrogation in favour of the City.
10.3 Where Services include professional advice or instruction, design, formula, or specification, the Supplier must maintain Professional Indemnity insurance of not less than two (2) million dollars for any one claim.
10.4 The Supplier must provide Certificates of Currency and other evidence of currency on request.
10.5 If the Supplier fails to effect or maintain required insurance, the City may do so and recover the premium as a debt or set it off against amounts payable to the Supplier.
11. Termination
11.1 Where applicable, this Agreement (and any contract formed) ends on the expiry date agreed in writing or otherwise agreed. Despite any provision to the contrary, any agreement between the City and the Supplier has an actual or implied end date.
11.2 The City may terminate the contract at any time, for any reason, on the giving of two (2) weeks’ written notice to the Supplier.
11.3 The City may terminate immediately by written notice if the Supplier is in default of any term or condition.
11.4 The City may terminate immediately by written notice if the Supplier:
(i) stops, suspends, or threatens to stop or suspend payment of all or a class of debts;
(ii) is insolvent within the meaning of the Bankruptcy Act 1966 or Corporations Act 2001;
(iii) must be presumed by a court to be insolvent under those Acts;
(iv) has an administrator appointed over all or any assets or undertaking;
(v) has a controller (section 9 Corporations Act 2001) or similar officer appointed; or
(vi) has an application, order, proceeding, resolution, notice, or other steps taken for bankruptcy, winding up, deregistration, dissolution, or an arrangement with creditors, and it is not withdrawn within twenty one (21) days (excluding frivolous or vexatious actions).
11.5 If Goods are standard stock, the City may terminate by written notice in respect of any unshipped or undelivered portion without further obligation, except payment (subject to this Agreement) for Goods shipped or delivered before termination.
11.6 If Goods or Services are to be manufactured to the City’s specifications, or the Supplier must install or fit Goods, and the City terminates before that work is performed, the Supplier must stop all work unless directed otherwise.
11.7 To the maximum extent permitted by law, the City is not liable to the Supplier for any consequential loss, whether arising in contract, tort (including negligence), statute, equity or otherwise, and whether direct or indirect, and whether or not foreseeable. Consequential loss includes, without limitation, any loss of profit, loss of revenue, loss of business, loss of goodwill, loss of anticipated savings, loss of opportunity, loss of use, loss of production, loss of data, loss arising from business interruption, and any indirect, special, exemplary or punitive loss or damage.
11.8 Termination does not affect accrued rights or remedies.
11.9 Public Health Emergency Termination
(a) The City may terminate this Agreement for convenience by written notice if a Public Health Emergency arises and the City considers the Services cannot reasonably and safely proceed.
(b) On termination, the City will pay only for Goods accepted and Services properly performed up to the Termination Date. No other amounts are payable.
(c) If termination occurs within 30 days of the Event opening date (or the scheduled commencement of the key Services), the City will negotiate in good faith to reimburse the Supplier’s reasonable third party out of pocket costs incurred solely for this Agreement that cannot reasonably be cancelled or recovered, supported by evidence, excluding the Supplier’s internal costs, wages, overheads, and mark ups.
(d) Public Health Emergency means any epidemic, pandemic, or other major public health event (including any resurgence) and any related order, direction, restriction, or recommendation of the World Health Organisation or a government or health authority.
12. Breach
12.1 If the Supplier breaches this Agreement, or advises it is not or will not be able to perform all or part of its obligations, the City may (without limiting other rights or remedies):
(a) terminate this Agreement by written notice, if permitted under this Agreement; and or
(b) acquire the Goods and or Services (or nearest reasonably available substitutes) from a third party or parties.
12.2 Indemnity for breach
(a) Any additional cost of acquiring substitutes is immediately due and payable by the Supplier on the City’s demand; and
(b) the Supplier must pay the City all cost, expense, loss, and damage suffered or incurred as a result of the Supplier’s breach.
13. Intellectual Property Rights
13.1 Where Services include preparing or providing design, formula, specification, or drawings, the Supplier assigns to the City absolutely:
(a) copyright in any work created in the course of the Services; and
(b) all rights in respect of any practice, concept, product, and process design created, developed, discovered, or first reduced to practice in the course of the Services that is capable of protection or registration.
The Supplier must sign all documents and do all acts and things necessary to vest legal ownership of copyright and other intellectual property rights in the City.
13.2 City documents and information provided to the Supplier remain the property of the City. This Agreement grants no right, title, or interest to the Supplier. The Supplier must use City documents and information solely to provide the Goods and or Services under this Agreement.
14. Notices
14.1 A notice, consent, approval, or other communication (Notice) must be in writing, signed (or signed on behalf of the sender), addressed to the recipient, and:
(a) sent by electronic mail to the recipient’s email address; or
(b) by pre-paid mail.
14.2 A Notice given under clause 14.1 is treated as given and received:
(a) if emailed and no non delivery message is received, on the day of sending if a Business Day, otherwise the next Business Day;
(b) if sent by pre paid mail, on the third Business Day after posting.
15. Record Keeping Requirements
15.1 All reports, manuals, drawings, computer programs, and other records (originals and copies) supplied by the City to the Supplier and relating to, or used in connection with, the supply of Goods or performance of Services must be returned on termination or the Completion Date.
15.2 The Supplier must keep all records relevant to, or created in, the course of this contract safe and secure in line with Good Industry Practices, including backups and fireproof storage for paper records.
15.3 The Supplier must provide the City access to all contract records within 24 hours of a written request, for contract performance measurement, general information resource, or to meet Freedom of Information Act 1992 requirements.
16. General
16.1 Neither party may disclose information about this Agreement without the other party’s prior written consent, except to enforce this Agreement, obtain legal or tax advice, or as required by law. This confidentiality obligation survives expiry or termination.
16.2 Non exercise or delay in exercising a power or right is not a waiver. Waiver is only effective in writing signed by the waiving party.
16.3 If any clause is invalid or unenforceable, the remaining clauses remain valid and enforceable to the fullest extent permitted by law.
16.4 This Agreement is governed by the laws of Western Australia and the Parties submit to the exclusive jurisdiction of Western Australia.
16.5 The Supplier must not subcontract or assign this Agreement, or any rights or obligations, without the City’s prior written consent, which may be granted with conditions or withheld in the City’s absolute discretion.
16.6 Subcontracting does not relieve the Supplier of liability. The Supplier is liable for acts and omissions of subcontractors and their employees, officers, agents, and contractors as if they were the Supplier’s. The Supplier must ensure subcontractor compliance with this Agreement.
16.7 The Supplier performs as an independent contractor, not as an agent or employee of the City.
16.8 The Supplier must keep true and correct records in connection with the Work and related matters for at least twenty four (24) months after completion of the Work.
16.9 The City requires environmental, social, and economic impacts to be considered for items designed, supplied, and constructed for the City. All Goods and Services and all work must comply with relevant legal requirements, including Environmental Protection Act 1986 Part 5, Australian Standards, Industry Codes of Practice, and any City Safety, Health and Environment Policy and or Code of Business Conduct.
16.10 The Supplier must comply with all laws (Federal, State, and Municipal) affecting the manufacture and or supply of the Goods, obtain permits and licences, give required notices, and pay all fees, deposits, and taxes.
16.11 If the City is restructured by law, the City’s rights and obligations are assigned to and assumed by the appropriate legal entity as determined by the City or its successors.
16.12 The City is not liable for indirect loss and or expense (including loss of profit) suffered by the Supplier arising from a breach by the City.
16.13 Neither party is liable for default due to war, terrorism, strike, lock out, industrial action, fire, flood, storm, or other events beyond reasonable control.
16.14 Dispute resolution: a party requiring a dispute to be resolved must give the other party written notice of details. Within 14 days of receipt, the Parties must meet to attempt resolution. If not resolved within 14 days after that meeting, either party may commence litigation.
16.15 The City may review these terms at any time. If changed, the change takes effect when the City notifies the Supplier. Supplier requested changes must be in writing and are binding only if accepted in writing by the City. The City may refuse without reasons.
16.16 If applicable to this contract and or applicable to the Supplier’s business or industry under relevant laws and regulations, the Supplier must, on request, provide evidence of compliance with child safety requirements and maintain compliance throughout the contract.