TERMS & CONDITIONS

CONTRACT 

The following documents form the entire Agreement between the parties: 

the Order;  these terms and conditions; and  any other document referred to in the Order. 

If there is any inconsistency between the documents listed above, precedence will be given to the document highest in the list unless expressly agreed otherwise. 

By commencing to supply the Goods or Services, the Supplier unconditionally accepts the terms and conditions of the Agreement and any terms or conditions proposed by the Supplier are expressly excluded regardless of how provided. 

The Supplier acknowledges that:  an offer to acquire the Goods or Services by ESS is conditional on the Supplier’s acceptance of these terms and conditions; and  any acceptance by ESS of an offer by the Supplier to supply the Goods or Services is conditional on the Supplier accepting these terms and conditions. 

To the extent permitted by Law, any statement, representation or promise made in any document, negotiation or discussion has no effect except to the extent expressly set out or incorporated by reference into this Agreement. 

The Supplier must obtain all permits, approvals and licences required by Law to supply the Goods and perform the Services. 

The Supplier must ensure that the Goods or Services:  comply with the Law and applicable Australian Standards of Standards Australia Ltd;  conform precisely in quality, quantity, specification and all other respects with any description provided to ESS by the Supplier or nominated by ESS to the Supplier;  are accordance with the Agreement; are fit for the purposes for which goods and services of the same kind are commonly supplied and for any other purpose made known to the Supplier; and  meet the standards that would be expected of a skilled and experienced supplier who supplies goods and services similar to the Goods and Services. 

The Supplier must ensure that the Goods:  are new, of merchantable quality and free from defects in materials and workmanship;  are free from all Security Interests, liens, charges and encumbrances of any kind; and  comply with any samples inspected by ESS prior to or after the Order was issued. 

ESS may direct the Supplier at any time to vary, amend, increase, decrease, omit or change the quality, character, extent or amount of Goods or Services (Variation). If the parties cannot agree the adjustment to the Price or Delivery Date for a Variation, ESS will determine a reasonable increase or decrease to both the Delivery Date and Price, if applicable. 

DELIVERY AND COMPLETION 

The Supplier must at its own cost properly pack and protect all Goods to ensure safe arrival, and safely transport the Goods along appropriate routes, in accordance with industry best practice. 

Delivery will have occurred only when the Supplier has:  delivered the Goods to the Site, and unless otherwise specified in the Order, unloaded the Goods at the location designated by ESS’ representative or in the Order, and received written confirmation of receipt from ESS;  completed the Services (including the provision of all deliverables and products of the Services and all third party warranties to ESS) and received written confirmation of completion from ESS. 

The Supplier must achieve Delivery by the Delivery Date and in any case expeditiously and without delay. 

If the Goods and Services are not Delivered by the Delivery Date, the Supplier will be indebted to ESS for liquidated damages at the rate set out in the Order (if any) for each day that Delivery is delayed beyond the Delivery Date, until the earlier of: 

liquidated damages incurred meet the limit, if any, set out in the Order;  the Agreement is terminated by ESS; or  Delivery is completed,  but if no rate is set out in the Order, ESS will be entitled to common law damages for the delay. 

ESS may postpone the Delivery Date for any duration and for any reason in its absolute discretion, at any time before or after the Delivery Date. 

The Supplier may not subcontract any of its obligations without the prior consent of ESS. Despite any consent, the Supplier remains responsible for all acts and omissions of its subcontractors and must ensure that they comply with all applicable terms and conditions of the Agreement. 

SECURITY 

If required by ESS, the Supplier must provide the Security specified in the Order.  Within 10 business days of Delivery, ESS shall release part of the Security so that the total value of the Security held shall not be more than 2.5% of the Price. 

Within 10 business days of the end of the Warranty Period, ESS shall release any Security then held by ESS provided that there are no moneys owed from the Supplier to ESS. 

 DEFECTIVE GOODS AND SERVICES 

 If ESS determines that any Goods or Services are unsatisfactory, defective, of inferior quality or workmanship or fail to meet any requirements of the Agreement, (Defective) the Supplier must do any of the following, at its cost, as determined by ESS in its absolute discretion:  re-take possession of the Defective Goods and refund the Price for the Defective Goods to ESS; 

Deliver replacements of the Defective Goods or re-perform the Defective Services; or repair the Defective Goods or remedy the Defective Services,  and reimburse ESS any damages or loss it has suffered as a direct result of the supply of the defective Goods or Services.  These rights are in addition to any other rights of ESS under the Agreement, at Law or in equity. 

The Supplier warrants that for the Warranty Period, it will at its cost repair or replace any defective Goods or Services which become apparent under normal working conditions during such period. All replacements or repairs must be carried out at the times notified by ESS and so as to minimise any inconvenience to users of the Site. 

The Supplier must do all things to ensure that ESS has the benefit of any warranties given by any third parties in respect of Goods and must give ESS all documentation relating to such warranties. Third party warranties are in addition to the warranties of the Supplier. 

 If the Supplier fails to correct Defective Goods or Services as and when directed under clause 4.1, ESS may, without further notice to the Supplier, engage another to replace or repair Defective Goods or re-perform Defective Services and all costs and damages suffered by ESS in connection with the Supplier’s failure shall be a debt due and payable to ESS. 

TITLE AND RISK 

Risk in the Goods passes to ESS on Delivery. Title to the Goods passes to ESS on payment or Delivery (whichever occurs first). 

SAFETY AND ENVIRONMENT 

The Supplier must perform its obligations under the Agreement with due regard for the health and safety of all persons and the protection of environment and must take all precautions necessary to protect the health and safety of persons and the environment. 

While carrying out Services or performing Delivery, the Supplier must, and must ensure that its employees, agents and subcontractors: attend any inductions ESS requires before they enter the Site or before they use any plant or equipment at the Site, as determined by ESS;  comply with all applicable polices and procedures of ESS and the Site in relation to health, safety and the environment; comply with all directions issued by the Site Project Manager or any other authorised Site supervisor; cooperate with others carrying out work at the Site and coordinate its work with the work of others so as to avoid disruption to others. 

 The Supplier must immediately advise ESS if: it reasonably believes that any of the Site or any plant or equipment at the Site is unsafe;  any person engages in work practices that are likely to put safety, health or the environment at risk; or 

an incident or accident occurs. 

Entry to the Site by the Supplier and the Supplier’s officers, employees, agents, servants and others engaged to supply the Goods or perform the Services is at their own risk and ESS shall not be responsible (to the extent permitted by Law) for any loss, damage or personal injury or death to those persons while on the Site or any other place provided by ESS in connection with Goods or Services. 

The Supplier must, at its cost, immediately and permanently remove from the Site any person ESS considers (in its absolute discretion) is behaving in an unsafe or offensive manner. 

PRICE & PAYMENT 

The Price is fixed and not subject to any increase whatsoever except to the extent expressly set out in the Agreement. 

The Price includes all things necessary to supply the Goods or Services in accordance with the Agreement including: 

labour, tools, equipment and materials;  complying with all Laws and obtaining all permits, licences and insurance; 

packaging and transport; and  all taxes, duties, levies, excise and other government fees and charges (other than GST). 

The Supplier shall submit to ESS a compliant Tax Invoice for the Price after Deliver. If the Supplier fails to submit a compliant Tax Invoice, the payment will not be processed. 

ESS will pay the Invoice 30 days from receipt. 

ESS may set off against any payment due to the Supplier any amount which ESS determines the Supplier is liable to ESS, whether for expenses or damages, howsoever arising. If the amount payable by ESS is insufficient to discharge the liability of the Supplier, ESS may have immediate recourse to the Security. This clause does not limit True Floor’s right to recover any amounts in other ways. 

INDEMNITIES 

The Supplier indemnifies ESS from any Claims, demands, suits, liabilities, actions, costs, losses, expenses, damages or penalties (including legal fees on an indemnity basis), which ESS may incur arising out of or in connection: breach of this Agreement by the Supplier; wilful, unlawful or negligent act or omission of the Supplier; loss of, loss of use of, destruction or damage to, property, caused or contributed to by the Supplier;  injury to or death of, persons caused or contributed to by the Supplier; breach by the Supplier of a duty of confidence owed to ESS; or any act of abandonment of some or all of this Agreement by the Supplier. 

The Supplier’s liability is reduced to the extent a negligent act or omission of ESS contributed to the relevant claim, damage, expense, loss or liability. 

Each indemnity in this Agreement is a continuing obligation, separate and independent from all other obligations and survives the termination or expiration of this Agreement. 

It is not necessary for a party to incur an expense before enforcing an indemnity. 

To the fullest extent permitted by Law, ESS has no liability to the Supplier under or arising out of this Agreement for any loss of revenue, use, production, goodwill, profit, business, contract or anticipated savings, financing costs or increase in operating costs; or other purely financial or economic loss or other special or indirect loss or damage. ESS’s maximum aggregate liability under this Agreement is limited to the Price. 

INSURANCE 

The Supplier must take out and keep current all necessary insurance policies reasonably expected of a Supplier of Goods and Services including (without limitation):  public liability insurance for not less than $20,000,000, until end of the Warranty Period;  workers’ compensation as required by Law;  third party comprehensive motor vehicle insurance until expiry of the Warranty Period; insurance of the Supplier’s plant and equipment; and  if specified in the Order, professional indemnity for not less than $2,000,000. 

The Supplier must provide ESS with evidence of the insurances required to be affected in accordance with this clause within 3 days of request by ESS. Failing which, ESS may, after 3 days’ notice in writing to the Supplier, take out such insurance itself and the cost of doing so will be a debt due and payable by the Supplier. 

CONFIDENTIAL INFORMATION 

The Supplier must keep confidential all Confidential Information and not disclose it to any other person, except: 

with the written consent of ESS;  to its professional advisers; or  to any of its workers who have a need to know in order to perform obligations under the Agreement,  provided that the recipient agrees to keep the Confidential Information confidential. 

Clause 10.1 does not apply to information that is required to be disclosed by Law or the requirements of a stock exchange, but only to the extent that the information is required to be disclosed. 

 INTELLECTUAL PROPERTY 

All information and materials given to the Supplier by ESS under this Agreement is the property of ESS and is only made available to the Supplier on the condition that:  the materials are to be used only for the purposes of the Agreement; and 

if requested by ESS, all such materials and copies are promptly returned to ESS. 

The Supplier gives ESS a non-exclusive, transferable, perpetual, royalty free licence (including the right to sub-licence) to use, modify, maintain or destroy the intellectual property in the Goods and Services (to the extent applicable). 

The Supplier warrants that the supply of the Goods and Services by it and the exercise of the rights granted under this agreement will not infringe any patent, trademark, copyright or other intellectual property right. 

TERMINATION 

ESS may terminate the Agreement immediately:  on written notice to the Supplier if the Supplier becomes insolvent, commits an act of bankruptcy, enters into administration, appoints a liquidator, receiver, manager or controller;  if, the Supplier breaches any term of the Agreement, and does not remedy the breach within the time specified by ESS in a notice to the Supplier of the breach; or  for any reason in ESS’ absolute discretion. 

If ESS terminates the Agreement, the Supplier will have no Claim, demand, suit, liability or action against ESS or its directors, officers and employees and it not entitled to any costs, losses, expenses, damages or penalties arising out of or in connection with the Agreement or its termination or the supply of the Goods or Services. 

RELATIONSHIP 

The Supplier performs its obligations as an independent contractor of ESS and not as an employee, agent or partner. 

GENERAL 

If the Supplier comprises more than one person or entity, each of them shall be jointly and severally liable for the full performance of the Supplier’s obligations under the Agreement. 

If any provision of the Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement. 

ESS and the Supplier agree that the Laws in force New South Wales apply to the Agreement and both submit to the exclusive jurisdiction of the courts of New South Wales. 

The failure of a party to require full or partial performance of a provision of the Agreement does not affect the right of that party to require performance subsequently. 

No obligation in the Agreement is waived unless it is waived in writing and signed by the parties. A single or partial exercise of or waiver of the exercise of any right power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. 

The Agreement any only be amended by written agreement between all parties. 

PPSA 

The Supplier must not register any Security Interest over the Goods. 

The Goods must be free of any Security Interests on Delivery. 

If ESS pays part of the Price prior to Delivery, the Supplier grants to ESS a Security Interest in the Goods as a Purchase Money Security Interest for the unpaid portion of the Price. 

INTERPRETATION 

In this Agreement:  Claim means any claim, right of action or demand (or similar legal entitlement), in any jurisdiction, including but not limited to at law, in tort (including negligence), under statute, in equity or for any other legal or equitable remedy. 

Confidential Information means any information relating to the business or affairs of ESS or its customers, whether provided to or obtained by the Supplier prior to or after issue of the Order, except information in the public domain (other than due to breach of the Agreement) or information rightfully, in the possession of the Supplier and not subject to an obligation of confidentiality at the time it was obtained by the Supplier. 

Deliver/Delivery means delivery of the Goods or performance of the Services in accordance with this agreement. 

Delivery Date means the date set out in the Order. 

ESS means ESS Engineering Services & Supplies Pty Ltd ABN 34 001 931 746. 

Goods means the goods, if any, described in the Order and all applicable Technical Materials. 

Law includes legislation, regulations, by-laws, orders, permits, approvals or licences. 

Order means a purchase order, quotation or acceptance for the Goods or Services that is issued by ESS incorporating the terms and conditions contained in this document. 

PPSA means the Personal Property Securities Act 2009 (Cth). 

Price means the amount payable for the Goods or Services specified in the Order. 

Purchase Money Security Interest has the same meaning as under the PPSA. 

Services means the services, if any, described in the Order. 

Security Interest has the same meaning as under the PPSA.

Site means the site specified in the Order or any other place provided by ESS for the Supplier to perform work arising out of or in connection with the Goods or Services. 

Supplier means the person described in the Order. 

Technical Materials means all plans, designs, drawings, engineering information, data, specifications, reports, accounts, installation instructions, maintenance and operating manuals, spare parts lists and any other technical material reasonably required for the safe installation, use and maintenance of the Goods. 

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Warranty Period means the period commencing upon Delivery and as specified in the Order. 

Last updated: 13.05.2015

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