The following terms and conditions apply to all purchases of goods and services where we (Banyule City Council) have issued an official purchase order to a supplier.
If you are involved in a formal contract with us, the terms and conditions as set out in that contract supersede these general terms and conditions.
In these terms and conditions, unless the context otherwise requires:
“Buyer” means Banyule City Council.
“Goods” where applicable means the goods subject of and described on the fact of this purchase order.
“Purchase Order” means the purchase order to which these conditions apply
“Supplier” means the person, firm, partnership, company or other legal entity to whom the purchase order is issued to provide the Goods or perform the Works as the case may be and includes its servants, agents and sub-contractors.
“Works” where applicable means the Works, the subject of and described on the purchase order.
The buyer shall be bound by this official purchase order on behalf of Council's duly authorised officer.
The supplier shall furnish all necessary goods, labour, materials, tools, equipment and supervision required for the fixed price set forth on the Purchase Order, which price includes all applicable taxes, including a goods and services tax, insurance, supervision, costs and other direct and indirect costs of whatever character and description.
4. Work Performed
All Works shall be performed and all goods shall be delivered in strict accordance with the terms and conditions herein, all of which form part of the purchase order.
5. Goods Delivered
If quantities of goods delivered or works completed are in excess of those specified by the buyer on the purchase order, the excess will not be accepted or paid for by the buyer.
6. Completion and Delivery
- The works shall be completed by the time specified (if any) on the purchase order.
- The goods shall be delivered to the place and date specified on the purchase order unless otherwise agreed between the buyer and the supplier.
- Time is of the essence so far as it is applied to the obligations of the supplier. If any goods are not delivered or works are not completed within the time specified (if any) in the purchase order, the buyer may either (where appropriate):
- refuse to accept the goods and terminate forthwith the purchase order;
- cause the supplier to deliver the goods by the most expeditious means and any additional delivery charges shall be borne by the supplier;
- obtain a reduction in the price paid for the works specified in the purchase order.
- The Supplier warrants that the goods:
- conform with the description provided by the supplier;
- conform with any applicable specifications agreed by the buyer and the supplier;
- are of merchantable quality and are fit for the purpose for which they are sold;
- are fit for the specific purpose (if any) of which the buyer has advised the supplier in writing;
- are free of defects in material, workmanship and design;
- are new (unless otherwise specified);
- are free from all liens and encumbrances and the supplier has good title to them; and
- comply with SAA/SNZ MP77 – 1998 ‘A Definition of Year 2000 conformity Requirements”.
- The supplier warrants that the works:
- will be rendered with due care and skill by competent and trained personnel; and
- any materials supplied in connection with the services will be reasonably fit for the purposes for which they are supplied.
- The warranties contained in these terms and conditions are in addition to any other warranties or guarantees applied by law or provided by the supplier or any third party.
8. Loss or Damage in Transit
The buyer shall advise the supplier of any loss or damage to or defect in the goods at the end of sixty (60) days of the date of delivery or intended date of delivery (as the case may be) and the supplier shall make good free of charge to the buyer any loss or damage to or defect in goods as is notified by the buyer.
The supplier agrees that the buyer and its agents shall have the right to inspect all works performed pursuant to the purchase order while in any stage of engineering, manufacture or installation and the goods prior to their dispatch. The supplier shall make this a condition of any works performed pursuant to the purchase order by any third party. Any such inspection shall not relieve the supplier of any obligations contained in the purchase order or required by law.
Notwithstanding Clauses 8 and 9, the buyer or its agents may reject any goods or works performed or being performed that do not conform to the purchase order and any works or goods rejected shall be re-performed or re-delivered (as the case may be) at no additional cost the buyer. Any payment by the buyer for the goods or the works shall not prejudice its right or rejection set out in this clause.
The supplier shall reimburse the buyer for:
- any purchase price paid by the buyer with respect to rejected goods or works; and
- any costs reasonably incurred by the buyer in connection with the rejection on the goods or works.
No alterations or additions to the works or the character or description of the goods shall be made by the supplier unless the supplier has first obtained written approval from the buyer’s authorised officer.
12. Title and Risk
Title to and risk of loss in the goods shall pass to the buyer upon delivery to the buyer in accordance with clause 6(ii), but without prejudice to any right of rejection or other rights which may apply to the buyer under these conditions.
The supplier shall maintain at its own expense adequate insurance including without limitation public liability insurance of an amount of at least $5,000,000.00, WorkCover, automotive and other means of transportation or freight liability insurance and product damage insurance on such terms or for such amounts as are reasonable in the circumstances of the purchase order. If required by the buyer, the seller shall provide evidence of all policies of insurance above and the currency thereof prior to the buyer undertaking the works or delivering the goods.
14. Terms of Payment
The supplier shall promptly render invoices for the works or goods in accordance with the buyer’s instructions. In the absence of any special arrangement, the buyer shall effect payment to the supplier within thirty (30) days of the commencement of the month following invoice.
15. Sub-Contracting and Assignment
The supplier shall not assign its rights or obligations under these terms and conditions, sub-contract the works or the provision of the goods pursuant to the purchase order without the prior written consent of the buyer and any such consent shall not relieve the supplier of its responsibility for the works or the goods pursuant to the purchase order or of any other obligations contained in the purchase order.
- Goods shall be properly packed to avoid being damaged during delivery or loading and unloading. All packages shall be clearly marked with the purchase order number and location of delivery.
- The supplier shall comply with all applicable Australian and international laws, regulations and other relevant requirements relating to the transport, packaging, storage, handling and use of the goods.
17. Applicable Law
The purchase order shall be governed in accordance with the laws of Victoria and the parties hereto submit to the non-exclusive jurisdiction of the courts in Victoria.
If the supplier fails to comply with these terms and conditions or repudiates this agreement or if the supplier becomes insolvent, commits an act of bankruptcy, stops payment of debts, calls a meeting of or enters into composition with or for the benefit of the supplier’s creditors or has a receiver, receiver/manager, manager administration, controller or liquidator appointed to its undertaking or assets or any part thereof or a winding up petition is presented against the supplier or the supplier goes into liquidation the buyer may at its discretion or regardless of any default or failure and without prejudice to its other rights forthwith cancel or suspend the contract or any unfulfilled part of the contract. In the event of cancellation or suspension as aforesaid, the buyer shall not be liable for any loss, damages, costs or expenses however arising from such cancellation or suspension.
19. Independent Contractor
The relationship between the buyer and the supplier is that of principal and independent contractor and nothing in this agreement shall be taken as constituting an employer/employee or an agency relationship.
The Supplier shall comply with all statutes, ordinances, by-laws and regulations in connection with its responsibilities under this agreement.
Any dispute arising out of or relation to these terms and conditions shall in the failure of the parties to reach agreement, but the subject of arbitration under the Commercial Arbitration Act (Vic) 2011. Any and all costs of such arbitration shall be borne equally between the parties. The decision of the arbitrator shall be final and binding upon the parties.
Any notices required pursuant to these terms and conditions shall be in writing and shall be validly given only if signed by a duly authorised person on behalf of either party and addressed to the parties at the address specified on the purchase order and shall be deemed to be duly given or made:
- in the case of a letter, the expiration of seventy-two (72) hours after the time of posting by pre-paid ordinary post or at the time of actual receipt by the addressee whichever occurs first;
- in the case of facsimile or email, when sent; and
- in the case of a personal delivery, when delivered.
If written acceptance of these terms and conditions is not communicated by the supplier to the buyer, the supply of the goods by the supplier to the buyer, or the commencement of works by the supplier shall constitute acceptance of these terms and conditions by the supplier.