Standard Terms and Conditions of a Purchase Order

1. Application

1.1 These are the Standard Terms referred to in a Purchase Order.

1.2 These Standard Terms apply to all Suppliers seeking to provide Supplies to NSW DPI pursuant to a Purchase Order.

1.3 These Standard Terms are in addition to any rights that NSW DPI may have at law.

1.4 The Supplier's performance of any part of the Contract will be deemed to be the Supplier's acceptance of these Standard Terms.

1.5 If there is any inconsistency between the Purchase Order and these Standard Terms, the provisions of the Purchase Order will prevail.

2. Definitions and interpretation

2.1 Definitions

Claim means any cost, expense, loss, damage, claim, action, proceeding or other liability (whether in contract, tort or otherwise), however arising and includes legal costs on a full indemnity basis.

Confidential Information of a party means all trade secrets, financial information and other commercially or scientifically valuable information of whatever description and in whatever form (whether written or oral, visible or invisible) which is by its nature confidential, which has been designated as confidential by a party or is derived or produced partly from the Confidential Information.

Contract means the agreement for the Supplier to provide the Supplies to NSW DPI, comprising these Standard Terms and a Purchase Order.

GST law means A New Tax System (Goods and Services Tax) Act 1999.

NSW DPI means the NSW Department of Primary Industries for and on behalf of the State of New South Wales (ABN 51 734 124 190) located at 161 Kite Street Orange NSW 2800.

Purchase Order means any document by means of which NSW DPI orders Supplies from a Supplier which includes, either by direct incorporation or by reference, the Standard Terms.

Standard Terms means these standard terms and conditions of contract for purchase of Supplies.

Supplier means the party who is to provide Supplies to NSW DPI pursuant to the Contract.

Supplies means the goods and, or, services to be provided to NSW DPI by the Supplier pursuant to the Contract.

2.2 Interpretation

Unless the context requires otherwise, in the Contract:

  1. words in the singular include the plural and vice versa;
  2. a reference to a statute, regulation, ordinance or by-law will be deemed to include a reference to all statutes, regulations, ordinances or by-laws amending, consolidating or replacing same from time to time;
  3. headings are for convenience only and do not affect the interpretation of the Contract;
  4. the meaning of general words is not limited by specific examples introduced by "including" or "for example" or similar expressions;
  5. references to persons include bodies corporate, government agencies and vice versa;
  6. references to the parties include references to respective directors, officers, employees, agents of the parties;
  7. nothing in the Contract is to be interpreted against a party solely on the ground that the party put forward the Contract or any part of it; and
  8. where an expression is defined, any other grammatical form of that expression has a corresponding meaning.

3. Packing and Delivery

3.1 The Supplier must pack the Supplies so as to ensure their safe delivery.

3.2 The Supplier must deliver the Supplies:

  1. within the specified time indicated on the Purchase Order or, if no time is indicated, within a reasonable time;
  2. to the delivery address, and in the manner, indicated on the Purchase Order.

3.3 NSW DPI accepts no responsibility for delivery of the Supplies but may elect to arrange delivery at its discretion without any liability and at the Supplier's cost.

4. Quality

4.1 The Supplies must:

  1. be of merchantable quality;
  2. be free from defects in materials and workmanship;
  3. meet all relevant Australian Standards;
  4. comply with NSW occupational health and safety legislation, where relevant (in particular Chapter 5 Part 5.3 of the Occupational Health and Safety Regulation 2001 applies to the supply of plant, and Chapter 6 Part 6.4 of that Regulation applies to the supply of hazardous substances); and
  5. comply with applicable NSW DPI policies.

4.2 The Supplier must provide the Supplies:

  1. for the purpose for which goods and services of the same kind are commonly supplied and for any other purpose made known by NSW DPI to the Supplier; and
  2. on the basis that any manufacturer's warranty is assigned to NSW DPI upon receipt by NSW DPI of the Supplies.

4.3 NSW DPI may inspect the Supplies, and their manufacture, at any time prior to payment. The Supplier must provide reasonable access to premises and all other necessary assistance to NSW DPI for such inspection.

4.4 NSW DPI may reject any Supplies found not to be in accordance with the Contract.

4.5 NSW DPI is not liable to pay for any rejected Supplies or for damage arising from inspection or rejection of the Supplies.

4.6 Without prejudice to NSW DPI's rights at law, if NSW DPI rejects any Supplies, the Supplier must: replace the rejected Supplies; refund any payment for the rejected Supplies; or repair the Supplies at the Supplier's cost to NSW DPI's satisfaction. When requested by NSW DPI, the Supplier must remove the rejected Supplies at the Supplier's cost.

4.7 If a warranty period is specified in a Purchase Order for the Supplies, the Supplier must correct any defect without delay and at no cost to NSW DPI during that warranty period. The Supplier must meet all incidental costs such as packing, freight, disassembly and reassembly costs.

5. Ownership and risk    

5.1 Title to, and risk in, the Supplies passes to NSW DPI on delivery of the Supplies to NSW DPI, unless specified otherwise.

5.2 NSW DPI reserves the right to take possession and dispose of Supplies as it sees fit at any time once NSW DPI has paid fully for the Supplies and the Supplier grants NSW DPI permission to enter any property where any Supplies are in order to do so.

6. Payment

6.1 Subject to NSW DPI's rights under the Contract, NSW DPI will pay the Supplier for the Supplies within 30 days of NSW DPI's receipt of a correctly rendered invoice from the Supplier.   

6.2 The Supplier's invoice must:

  1. include the Supplier's full trading name, address and ABN;
  2. quote NSW DPI's Purchase Order number;
  3. include "NSW Department of Primary Industries (ABN 51 734 124 190)";
  4. be sent to NSW DPI's  invoice address indicated on the Purchase Order; and
  5. where GST is applicable, be a valid tax invoice under GST law.

6.3 Any payment by NSW DPI does not constitute an admission on the part of NSW DPI that the Supplies are in conformity with the Contract and no payment will be deemed to release the Supplier from its obligations under the Contract.

6.4 NSW DPI may be purchasing the Supplies for NSW DPI's use or for resale. The Supplies may be incorporated in any products. The Supplier must not make any claim for royalties or other compensation by reason of such use, sale or manufacture.

7. GST

7.1 Unless otherwise defined in the Contract, words or expressions used in this clause have the same meaning as defined in the GST law.

7.2 The price on a Purchase Order for the Supplies is exclusive of GST, unless otherwise indicated. However, the price includes all and any other taxes, duties and charges, unless agreed otherwise by the Supplier and NSW DPI. The Supplier cannot claim additional charges such as for inspecting, packing, delivery or insurance.

7.3 If a taxable supply is made to a recipient, the party which makes the taxable supply must provide the recipient with a tax invoice or other document with information required by the GST law to be included in a tax invoice to enable the recipient to claim an input tax credit.

7.4 If the party which makes the taxable supply is not registered for GST it must provide the recipient with a statement with the first invoice in accordance with the GST law, or the recipient will withhold a withholding payment.

7.5 If any GST is payable by the party which makes the taxable supply under the Contract, any consideration payable for any such taxable supply will be increased by the amount of GST payable (except to the extent that the consideration is already expressed to be GST inclusive).

8. Use of information and privacy

8.1 In this clause, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

8.2 NSW DPI may use information (including personal information) provided by the Supplier under the Contract and from any other sources for the purposes of: administration; assessing the Supplier's performance under the Contract; and determining whether to purchase further Supplies from the Supplier in the future.

8.3 NSW DPI may disclose the information to any other government agency, auditors or consultants in connection with those purposes.

8.4 The Supplier has a right of access to, and correction of, any such personal information by contacting NSW DPI. 

9. Confidential information

9.1 Each party as the recipient of Confidential Information ("Recipient") must in relation to the Confidential Information of the other party ("Discloser"):

  1. keep it confidential;
  2. use it only as permitted under the Contract;
  3. not disclose it to any person other than to its employees, subcontractors and agents who have a need to know;
  4. before disclosing it any to any of the people described in sub-clause 9.1(c), make sure that those persons are made aware of the confidential nature of the Confidential Information prior to obtaining access and procure an assurance that any such Confidential Information will be kept confidential;
  5. not copy it or any part of it that is in material form other than as strictly necessary and must mark any such copy 'Confidential – ([Name of Discloser])';
  6. implement security practices against unauthorised copying, use and disclosure (whether that disclosure is oral, in writing or in any other form);
  7. immediately notify the Discloser if the Recipient becomes aware of any unauthorised copying, use or disclosure in any form or any disclosure required by law;
  8. promptly comply with any request by the Discloser to return or destroy any or all copies of Confidential Information unless required by law to be retained; and
  9. upon expiry or termination of the Contract, return to the Discloser all Confidential Information provided to it by the Discloser.

9.2 A Recipient's obligations of confidentiality do not apply to information that:

  1. was acquired from a source other than the Discloser where such source is entitled to disclose it;
  2. is independently developed or known by the Recipient including because it is in the public domain otherwise than through a breach of the Contract or other obligation of confidentiality;
  3. the Recipient can prove by contemporaneous written documentation was already known to it at the time of disclosure (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
  4. is required to be disclosed by law.

9.3 The Recipient bears the onus of showing that any of the above exceptions apply.

10. Liability and indemnity

10.1 The Supplier must indemnify and keep indemnified NSW DPI from and against any and all Claims incurred by, or made against, NSW DPI arising directly or indirectly from:

  1. any breach of the Contract by the Supplier;
  2. any unlawful or negligent act or omission by the Supplier in connection with the Contract;
  3. any illness, injury or death of any person caused or contributed to by the Supplier in connection with the Contract;
  4. any loss or damage to real or personal property of NSW DPI caused or contributed to by the Supplier in connection with the Contract; or
  5. any act or omission by the Supplier in connection with the Supplies that is in infringement of any intellectual property, moral or privacy rights of NSW DPI or any third party.

10.2 The Supplier's liability to indemnify NSW DPI under this clause will be reduced proportionately to the extent that any negligent or unlawful act or omission by NSW DPI contributed to the relevant Claim.

10.3 The Supplier's liability to indemnify NSW DPI under this clause does not exclude or reduce the liability of, or benefit to, a party that may arise by operation of the common law, statute or the other terms of the Contract.

10.4 The Supplier must effect and maintain appropriate insurance policies for so long as its obligations remain in connection with the Contract.

11. Termination

11.1 In addition to any other rights under the Contract or at law, NSW DPI can terminate the Contract in whole or in part by written notice to the Supplier if the Supplier:

  1. fails to deliver the correct Supplies, or the correct quantities, as indicated on the Purchase Order;
  2. fails to deliver the Supplies by any specified due date as indicated on the Purchase Order;
  3. if the Supplies are not of merchantable quality and free from defects;
  4. if the Supplier becomes insolvent, makes an assignment for the benefit of creditors, is the subject of winding up proceedings whether voluntary or compulsory otherwise than for the purpose of reconstruction and amalgamation, or a receiver is appointed to the Supplier by a court; or
  5. without limitation to the above, if the Supplier otherwise breaches the Contract.

11.2 NSW DPI can also terminate the Contract at will at any time by notice in writing to the Supplier without giving reasons.

11.3 On termination, NSW DPI can:

  1. discontinue any payments under the Contract;
  2. recover from the Supplier any sums paid for undelivered Supplies; and
  3. purchase similar supplies from alternative sources and claim by way of indemnity any loss that NSW DPI may suffer in doing so.

12. General

12.1 Entire Agreement: The Contract states all the express terms agreed by the parties as to the matters referred to in those documents. They supersede all prior contracts, obligations, representations, conduct and understandings.

12.2 Negation of employment or agency: The Supplier must not represent itself as being an employee or agent of NSW DPI or as otherwise able to bind or represent NSW DPI.

12.3 Waiver: If a party fails to exercise any of its rights under the Contract, or delays exercising those rights, that failure or delay will not operate as a waiver of those rights or any future rights or in any respect estop a party from relying on the Contract to its full force and effect. Any waiver by a party of a breach of the Contract must be in writing and will not be construed as a waiver of any further breach of the same or any other provision.

12.4 Assignment: The Supplier must not assign or novate its obligations or interests under the Contract, without the prior written consent of NSW DPI.

12.5 Subcontract: The Supplier must not subcontract the performance of the Contract without the prior consent of NSW DPI. The Supplier remains responsible for the performance of the Contract, notwithstanding any subcontract. The Supplier is liable for the acts and omissions of any subcontractor as if those were the acts and omissions of the Supplier.

12.6 Keeping of records and rights of access to such records: The Supplier must keep complete, accurate records and books of account with respect to the Supplies and must retain such records for a minimum of seven (7) years after expiry or termination of the Contract. The Supplier authorises NSW DPI, its auditors, and any other agency that has provided moneys to NSW DPI for the purposes of the Contract, to examine, inspect and copy the records at reasonable times and on reasonable notice.

12.7 Conflict of Interest: The Supplier must not, during the term of the Contract:

  1. act as a supplier to any person who carries on or is involved in any capacity in an activity of business; or
  2. carry on or be involved in any capacity in an activity or business,
    which may conflict with, or adversely affect, the Supplier's ability to carry out its obligations under the Contract, and the Supplier agrees to immediately notify NSW DPI in writing if a risk of such a conflict arises.

12.8 Governing Law: The laws of New South Wales govern the Contract. NSW DPI and the Supplier submit to the non-exclusive jurisdiction of the courts of New South Wales.